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lilllllllliiSSi'-H 

UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  01   I  '-.'. 
LIBRARY 


LEGAL  OUTLINES, 


BEIN(.  'Hi:  i  ■:  in    [HE  FIRST  TITLE  Ol     \  COURSE  OF  LECTURES  NOW 

DELIVERING  IN  THE  DNIVERSITV  OF  MARYLAND. 


I)  A  V  ID      II  O  F  FM  A  N 

JUH.  (TIM.   1)'"  i     (SOTTING Rh 


U  discant,  amenl   meminissc  periti. 


JOHN     MILLER,    HENRI  ETTA     STREET, 

(dV  1.  NT      G  A  R  DE  N. 

BALTIMOKK: 

.1   OS  E  P  II      X   E    \   L. 
1836. 


T 


C  L  .n  T  ENTS. 



^  Page. 

I    Preface ; 

°   Address  to  British  Students Xll 

t 

LECTURE     I. 

I  Of  the  Origin  and  Nature  of  man,  his  Physical  and  Moral 

Constitution 9 

LECTURE   II. 

Of  man  m  a  Slate  of  Nature 72 

LECTURE     III. 
Of  the  Rights  of  Nature 102 

LECTURE    IV. 

Of  the  Origin  of  Primary  Society,  and   of  Civil  Govern- 


ment 


l  1 1 


LECTURE    v. 

Of  the  Rights  of  Civil  Government 178 

LECTI  RE     VI. 

Of  thi  Effects  ol  Society  ami  Jurisdiction  on  the  Natural 
Rights  of  Man olo 

lecture   vu. 
Of  Law,  and  its  General  Properties 249 

LEc   II   1.1       |  111. 

Of  the  Laws  of  Nature  applied  to  Man  individually,  either 
in  a  Stale  of  Nature,  or  of  Primary  Socii  u  and  Civil 
Government 297 

LE(   II  RE    i\. 

Of  Political  as  distinguished  from  Civil  Law.  and  of  the 
rarious  forms  of  Government 

LECTURE    -X. 

Of  the  Feudal  Law 435 

APPENDIXES. 

1.  Syllabus  ui  the  contents  of  each  lecture, 597 

IL    List  oi  leading  authorities  on  iln  topics  "I  each  lecture,   009 

I-NOEX, 6JS 


67C848 


P  R  E F  ACE 


The  volume  here  offered  to  the  public,  and  two 
others  by  which  it  will  probably  be  followed,  are 
designed  to  contain  the  substance  of  an  extensive 
course  of  lectures  on  law,  which  the  author  is  deli- 
vering in  the  University  of  Maryland.  The  present 
publication  embraces  only  the  initiatory  title  of  the 
course,  of  which  the  entire  scheme  was  stated  in  a 
Syllabus  published  in  the  year  1821,  which  contains 
eleven  titles  It  is  far  from  being  intended,  how- 
r.  to  test  the  indulgence  of  the  public,  or  add  to 
the  redundancy  of  the  press,  by  a  proportionate 
number  of  volumes.  The  work  is  presented  with 
unaffected  diffidence,  being  dedicated  more  espe- 
cially to  students,  to  whom  its  utility  will  be  more 
manifest,  it  is  hoped,  when  the  publication  of  the 
remaining  volumes,  should  they  be  called  for,  shall 
display  the  whole  design.  The  work  would  then 
contain,  it  is  believed,  the  only  analytical  outline 
which  has  yet  appeared  of  the  entire  body  of  juris- 
prudence proper  to  be  studied  in  this  country,  and 
may  thus  prove  advantageous  in  rendering  the 
student's    transition    to    the     •Commentaries*    less 


PREFACE. 


li 

abrupt  than  usual.  Though  there  are  many  excel- 
lent elementary  works  on  the  Laws  of  England, 
none  of  them  have  aimed  at  presenting  a  coup  (Vccil 
of  the  entire  science  of  jurisprudence.  The  object 
of  these  'Outlines'  when  completed,  is  to  furnish 
the  law-student  with  a  concise  and  orderly  view 
of  every  branch  of  that  vast  system,  the  details  of 
which  are  to  occupy  him  through  life.  His  future 
studies  may  perhaps  be  facilitated  by  a  survey,  as 
it  were,  of  the  geography  of  a  vast  region;  with 
its  numerous  boundaries,  divisions  and  sub-divi- 
sions; its  minute  and  devious  paths,  in  which  it  maj 
be  consoling  to  know  that  if  he  wanders  long,  il 
is  not  without  method  and  aim. 

In  the  lectures  now  given  of  this  preliminary 
title,  the  student  will  find  the  elements  of  Nati 
ral,  Political  and  Feudal  Jurisprudence. 
These  may  serve  as  a  basis  to  his  future  researches, 
not  only  into  the  laws  and  institutions  of  England 
and  of  this  country,  but  in  that  great  code  which  re- 
gulates the  communion  of  nations;  as  well  as  in  that 
vast  body  of 'written  reason,'  the  Roman  Civil  Law  . 
together  with  the  various  systems  of  continental 
jurisprudence  erected,  in  part,  on  its  foundations. 
The  topics  have  been  treated  in  a  method  not  so 
strictly  concise  and  analytical  as  will  be  necessary 
in  discussing  those  which  are  embraced  in  the  con- 
templated volumes.  This  difference  in  the  mode 
of  treating  the  two  great  divisions  of  the  work,  has 
been  preferred,  because  the  important  and  extensive 


PREFACE.  Hi 

learning  of  ethical,  of  political  and  of  feudal  law  is 
too  apt  to  be  neglected  by  the  student,  who  scarcely 
thinks  he  has  commenced  his  legal  studies  till  he 
begins  the  perusal  of  his  Blackstone  and  Coke,  his 
Hargrave  and  Preston — authors  indeed,  eminently 
distinguished  in  the  peculiar  municipal  jurispru- 
dence of  England,  but  who,  with  many  others  on 
like  subjects,  are  by  no  means  sufficient  to  make 
a  fripe  scholar'  in  the  law.  These  subjects  have 
been  treated  by  a  large  class  of  writers,  many  of 
them  entitled,  not  merely  to  his  passing  respect, 
but  to  his  serious  study. 

The  second  and  third  volumes  are  designed  to 
treat  of  the  elements  of  the  Municipal  law,  in  its 
most  extended  sense;  including  various  titles  of 
British,  American  and  Roman  law,  which  have 
been  scarcely  alluded  to  by  the  accomplished 
commentator  on  the  laws  of  England ;  together 
with  several  auxiliary  subjects.  To  embrace  the 
analysis  of  a  subject  so  extensive  within  the  lim- 
its we  have  mentioned,  will  necessarily  require 
much  condensation,  and  a  manner  considerably 
different,  as  before  remarked,  from  that  which  is 
adopted  in  the  present  volume.  In  an  analysis  of 
this  kind  nothing  is  to  be  omitted,  yet  nothing, 
however  important  and  difficult,  can  be  very  fully 
explained.  The  classification  must  be  comprehen- 
sive, natural  and  clear;  the  definitions  ample,  but 
cautious;  the  examples  frequent  and  illustrative;  so 
that  the  whole  may  present  a  philosophical  contour 
of  the  entire  system. 


jv  PREFACE. 

Should  the  author's  desire  to  publish  the  entire 
scheme  be  accomplished,  the  whole  work  would 
then  embrace  thirteen  titles,  viz :  the  Outlines  of 

I.  Natural,  Political,  and  Feudal  Jurisprudence. 

II.  The  Law  of  Landed  Property,  technically 
called  the  law  of  Real  Rights  and  Real  Reme- 
dies. 

III.  The  law  of  Persons  and  of  Personal  Pro- 
perty,  technically  called  the  law  of  Personal 
Rights  and  Personal  Remedies. 

IV.  The  Law  of  Equity,  as  it  is  distinguished 
from  strict  Lav/  on  the  one  hand,  and  mere  Ethics 
on  the  other. 

V.  The  Law  of  Mercantile  Transactions,  tech- 
nically called  the  Lex  Mercatoria. 

VI.  The  Law  of  Crimes  and  Punishmets. 

VII.  The  Roman  Civil  Law,  by  eminence 
called  The  Civil  Law. 

VIII.  The  Law  of  Nations,  sometimes  called 
International  Law. 

IX.  The  Maritime  and  Admiralty  Law. 

X.  The  Constitution  and  Laws  of  the 
United  States. 

XI.  Legal   Bibliography   and   Biography. 

XII.  Forensic  Eloquence  and  Oratory. 

XIII.  Professional  Deportment. 

The  publication  of  the  present  title  separately 
from  the  others,  has  been  induced  by  the  considera- 
tion that  most  of  its  topics  arc  a  little  too  metaphy- 
sical to  make  their  due  impression  through  mere 


PREFACE. 


oral  delivery;  besides  which,  the  remaining  twelve 
titles  are  gradually  becoming  sufficiently  extensive 
to  occupy  all  the  time  which  can  at  present  be 
allotted  in  this  way  to  the  duties  of  the  chair;  while 
the  analysis  or  substance  of  the  entire  course,  if 
published,  would  serve  the  student  as  an  accurate 
note-book  of  all  the  lectures  embraced  within  this 
extensive  design  of  the  professorship. 

The  present  title,  and  the  others,  it  is  supposed, 
might  be  placed  in  the  hands  of  students  previously 
to  their  reading  the  'Commentaries'  of  Mr.  Justice 
Blackstone,  or  the  recent  very  able  'Commentaries 
on  American  Law,'  by  Chancellor  Kent. 

In  addition  to  the  general  table  of  contents,  the 
student  will  find  at  the  end  a  syllabus  of  the  con- 
tents, and  a  list  of  the  leading  books  and  authorities 
which  deserve  to  be  read  by  him. 


TO 

BRITISH    STUDENTS    OF    LAW. 


In  submitting  to  you  this  volume,  the  author  is  not 
aware  that  any  of  its  pages  are  less  appropriately 
addressed  to  British  than  to  American  students. 
The  remark  equally  applies  to  his  entire  scheme, 
should  it  be  completed.  The  differences  in  the 
systems  of  American  and  British  law,  especially  in 
the  civil  and  criminal  branches,  are  gradually  dis- 
appearing,— and  when  compared  with  the  whole, 
these  differences  were  at  no  time  very  extensive  or 
material.  The  sources  which  supply  our  law  are 
nearly  the  same  as  your  own — no  volume  of  British 
law  remains  unknown,  longer  than  for  the  winds  to 
bring  it  to  our  shores — the  decisions  of  your  courts 
are  as  familiarly  relied  on  in  our  tribunals,  as  in 
yours — your  statutes  for  the  larger  part,  are  common 
to  us  both — your  elementary  writers,  also,  are  in  the 
hands  of  all  our  students — and  we  are  aware  of  no 
material  difference  in  the  course  of  study  pursued 
in  the  two  countries,  except  that  the  attention  of 
our  students  has,  perhaps,  been  more  generally 
directed  to  the  Roman  and  Continental  law,  and 
indeed,  to  all  that  is  embraced  under  the  head  of 


Vlll 


universal  jurisprudence,  than  seems  to  be  the  case 
in  England.  This  arises  from  the  simple  fact  that 
your  laws  have  long  since  been  formed  and  prac- 
tised— ours  have  been  gradually  adopted,  and  fash- 
ioned by  our  legislatures  and  courts,  as  occasion 
required — cthe  world  is  all  before  us  where  to 
choose' — and,  moreover,  none  of  our  laws  arc  so 
deeply  radicated  by  time,  as  to  claim  the  veneration 
due  to  antiquity,  or  the  indulgence  accorded  to  the 
natural  prejudices  arising  from  long  use. 

With  the  best  intentions,  it  has  been  the  endea- 
vour of  the  author,  on  various  occasions,  to  pre- 
sent to  the  American  law  student,  the  science  in 
its  most  attractive  garb — to  smooth  for  him  the  paths 
he  must  pursue,  would  he  attain  the  highest  rank 
in  his  profession — and  finally,  to  point  out,  not  only 
the  most  enlarged  and  philosophical  sources,  but  such 
as  are  strictly  practical,  and  of  daily  occurrence  in 
his  professional  career.  Some  of  the  views  alluded 
to  (in  connection  with  the  present  volume)  are  now 
presented  for  the  first  time  to  the  notice  of  the 
British  Law  student, — and  in  so  doing,  we  trust  it  is 
with  no  unbecoming  confidence,  as  Americans  for 
several  centuries  have  mainly  relied  on  British  law 
works,  and  it  is  the  humble  wish  of  the  author,  more 
particularly  in  his  'Course  of  Legal  Study,'  to 
invite  the  attention  of  British  students,  and  lawyers, 
and  statesmen,  to  the  progress  of  legal  science  in 
our  country,  and  to  its  extensive  legal  bibliogra- 
phy— neither  of  which  has  hitherto  attracted  much 


IX 


notice  on  your  side  of  the  Atlantic,  though  it  may, 
with  perfect  truth  be  declared;  that  in  the  Lex 
Mercatoria,  generally,  in  Admirality  and  Maritime 
law,  in  the  great  branch  of  Equity,  in  the  numerous 
lights  dawn  from  the  Roman  and  Continental  law — 
as  also  in  various  branches  of  Criminal  Jurispru- 
dence, and  even  of  the  strict  Common  law,  there  is 
a  body  of  American  judicial  decision  and  legislation, 
and  of  learned,  philosophical,  and  practical  law 
treatises,  that  may  well  compare  with  any  known  to 
the  legal  bibliography  of  your  country.  This  fact, 
when  more  generally  known,  cannot  fail  to  excite 
a  just  and  proper  interest  in  your  country — for  we 
are  almost  wholly  from  the  same  British  stock — 
our  language,  institutions,  laws,  religion,  are  nearly 
identical — and  in  the  lapse  of  one  century  more, 
our  population,  diffusing  your  laws  and  language, 
will,  in  all  probability,  exceed  one  hundred  and  fifty 
million  of  souls  !  How  natural,  and  beneficial  and 
politic,  then,  is  a  reciprocal  good  feeling,  the  sure 
result  of  a  reciprocal  acquaintance  with  each  others' 
laws,  literature,  science,  institutions,  Sic.  Nor  should 
the  day  of  small  beginnings  be  unworthy  of  your 
notice — that  day,  however,  has  nearly  passed  from 
us, — American  literature,  science,  law,  medicine, — 
the  mechanic  arts — the  utilities  of  life — the  luxuries 
and  refinements  of  life,  are  advancing  with  a 
rapidity  but  little  known  or  believed  in  the  old 
world;  and  never  fully  appreciated,  but  by  those 
of  our  country  who  have  carefully  and  personally 


compared  the  state  of  things  in  the   two  hemis- 
pheres. 

May  your  great,  and  glorious,  and  delightful 
country  continue  in  its  career  of  usefulness  and 
prosperity.  May  your  fields  ever  be  green — your 
garners  redundant — your  manufactures  and  com- 
merce be  spread  over  the  world — your  charities 
continue  their  heaven-born  influences — your  proud 
cathedrals  swell  the  loud  anthem — and  your  lite- 
rature, science,  laws,  and  institutions  be  mainly  fol- 
lowed, as  the  best  exemplars  of  all  that  exalts  a 
nation — of  all  that  renders  man  individually  blest. 
These  are  the  earnest  wishes  of, 

Your  obedient  servant, 

DAVID  HOFFMAN. 

Baltimore,  May,  1S3G. 


LEGAL  OUTLINES. 


LECTURE  I. 

OF    THE    ORIGIN    AND    NATURE   OF  MAN;    HIS    PHYSIC  XL  AND 
MORAL  CONSTITUTION. 


Nalura  enim  juris  cxplicanda  est  nobis,  eaque  an  hominis  repetcnda 
natura— Cic.  de  Leg.  Lib.  1.  c.  5. 


(i.)Of  the  proprie-       Before  we  enter  on  the  consideration 

ty of  treatingof Man's  of  ^  scienCe  which  unfolds  the  rights 
nature,  prior   to   the  ° 

consideration  of  the  and  duties  of  man,  we  deem  it  proper  to 

science    which     un-  inst;tute  somc  inquiry  into  his  moral  and 

folds   his   rights   and  »       J 

duties.  physical   constitution;    in    what  respects 

he  agrees  with,  or  differs  from  other  animals;  the  unity  of 
his  nature;  and  the  relations  in  which  he  stands;  and  from 
these  to  deduce  his  duties,  and  his  rights;  since  it  is  impos- 
sible to  understand  these  correctly,  unless  we  analyse  the 
character  of  that  being  by  whom  they  are  to  be  discharged, 
and  to  whom  they  are  due. 

Independently  of  all  revelation,  or  divine  positive  com- 
mand, all  the  laws  of  nature,  (which  are  the  fountain  and 
foundation  of  all  other  laws,)  are  only  rules  of  conduct  adapt- 
ed to  promote  the  felicity  of  Man.  We  must,  therefore, 
ascertain  his  nature;  the  pursuits  most  proper  to  that  na- 
ture; the  various  kinds  of  happiness  at  which  he  aims;  how 
far  that  happiness  is  connected  with  the  happiness  of  others; 
to  what  degree  (under  this  view)  he  must  control  his  indivi- 
dual propensities,  in  order  not  to  interfere  with  the  felicity 
2 


10  OF    THE    ORIGIN     AND  [Ltd.  1 

of  others,  and  thus  eventually  with  his  own;  in  what  n 
tion  he  stands  to  the  author  of  his  existence;  and   then, 
from  all   these  relations  deduce   his  obligations  to  God,  to 
himself,  and  to  mankind. 

Were  any  warrant  for  this  opinion  needed,  except  that 
which  is  found  in  every  thinking  mind,  and  feeling  heart, 
we  have  it  abundantly  furnished  in  the  writings,  heathen 
and  christian,  of  ancient  and  modern  philosophers.  They 
all  concur  in  the  sentiment,  that  salutary  laws  must  have 
special  regard,  not  only  to  the  general  character  of  man  as 
a  rational  and  feeling  being,  but  also  to  the  various  modifi- 
cations and  inflexions  of  his  character  arising  from  the  gra- 
dual operation  of  moral  and  physical  causes.  Hence,  Cicero, 
speaking  of  natural  jurisprudence,  says,  'we  must  search 
for  the  nature  of  law  in  the  nature  of  man."  'Natura  enim 
juris   explicanda    est    nobis,   eaque   ab    homii.  enda 

natura.'      And  we   think  the  enlightened   jurist  of  c 
country  will  agree  with  that  distinguished  Roman,  that  the 
code  best  adapted    to  any  particular  nation  or  commui 
can  only  be  known  by  a  minute  inspection  into  the  general 
and  the  adventitious  character  of  man.      Natural  jurispru- 
dence is  fixed  and  immutable  in  her  decrees}  we  ascertain 
her  precepts  by  reference  to  the  intrinsick  character  of  man 
in  all  ages,  and  in  ail  countries.    Civil  jurisprudence,  on  the 
other  hand,  is  variable  in  some  of  its  maxims  and    p< 
as  it  derives  many  of  its  principles  from  what  has  been  e\- 
trinsically  added  to  the  character  of  man.     No  one,  how- 
ever, can   hope  to  study  cither  system  to  advantage,  who 
neglects  the  study  of  man,  both  in  his  moral 
constitution.     The  science  of  his  moral  duties  is  founded 
in  the  knowledge  of  bis  moral  nature,  and  tl  e  law  u 
regulates  his  civil  actions,  should  hav  I  to  his  p] 

cal  condition,  as  far  as  it  may  aflfect  his  moral  constitution. 
Psychology  therefore,  together  with  speculative  and  prac- 
tical ethics,  added  to  the  physiology  o(    man,  should   I 


I.tct.  1  ]  na  ri  r. i:   oy    man.  1 1 

a  main  branch  of  every  jurist's  study.  The  infinitely 
changing  condition  of  our  species  obtains,  nevertheless, 
only  in  those  circumstances  which  give  the  colouring  to 
man's  character:  that  which  constitutes  the  essence,  genius, 
or  even  the  substantial  form  of  his  moral  character,  is  liable 
to  no  change.  Hence  the  great  code  of  natural  law  may 
be  studied  with  equal  advantage  in  all  ages,  and  in  all 
countries;  on  this  the  municipal  laws  of  every  nation  must 
repose;  and  though  climate,  condition,  physical  education, 
and  moral  habits,  demand  an  adaptation  of  the  laws  to  the 
character  formed  by  these  causes,  it  must  be  always  borne 
in  mind,  that  not  one  of  even  the  most  trivial  of  the  pre- 
cepts of  natural  law  can  be  abrogated.  There  is  not  a  natu- 
ral law  for  the  savage,  and  a  natural  law  for  civilized  man; 
what  is  honest,  just,  benevolent  in  the  one,  is  equally  so  in 
the  other.  'Honeste  vivere,  alterum  non  laedere,  suum 
cuique  tribuere,'  are  precepts  of  universal  and  perpetual 
obligation.  'Nee  erit  alia  lex  Romae,  alia  Athenis,  alia 
nunc,  alia  posthac;  sed  et  omnes  gentes,  et  omni  tempore, 
una  lex  et  sempiterna  et  immortalis  continebit.'*  Of  this 
law  we  may  truly  say,  Mier  voice  is  the  harmony  of  the 
world;'  it  is  the  same  at  Athens  as  at  Rome;  the  same  in 
Britain  as  in  this  our  happy  land; — the  same  to-day,  as  in 
the  beginning  of  time.  'Nee  vero  aut  per  senatum,  aut 
per  populum  solvi  hac  lege  possumus;'  and  with  Hesiod 
of  old  we  may  declare, 

'This  law  did  Jove  for  Human  Race  ordain: 
The  Beasts,  the  Fishes,  and  the  Feather'd  train 
He  left  to  mutual  spoil,  and  mutual  prey, 
But  Justice  gave  to  man.' 

It  is  true  indeed,  that  the  duties  and  rights  of  man,  as  de- 
fined by  this  law,  may  be  added  to  in  a  state  of  society; 
and  those  things  which  are  merely  permitted  in  a  state  of 
nature,  may  be  modified  or  abrogated  by  positive  law:  but 

•  Cicrro  De  Republica  Lact,  lib.  6,  c.  8, 


12  OF    THE    ORIGIN    AND  [Lect    I 

no  human  laws,  or  condition  of  society,  can  lessen  the  ob- 
ligation of  what  is  commanded  or  prohibited  by  this  code, 
engraven  on  the  hearts  and  minds  of  men  by  the  finger  of 
God.  This  is  all,  we  presume,  that  can  be  meant  by  Lord 
Bacon,  who,  with  as  much  truth  as  elegance,  says,  'There 
are  in  nature  certain  fountains  of  justice  whence  all  civil 
laws  are  derived  but  as  stream;  and  like  as  waters  do  take 
tinctures  and  tastes  from  the  soils  through  which  they  run, 
so  do  civil  laws  vary  according  to  the  regions  and  go- 
vernments where  they  are  planted,  though  they  proceed 
from  the  same  fountains.'* 

A  science  of  such  vast  extent  as  that  of  natural  jurispru- 
dence, should  form  a  distinct  and,  for  the  reason  I  have 
stated,  a  preliminary  subject  of  your  inquiries. 

In  a  course  of  lectures  as  comprehensive  as  that  in  which 
we  are  engaged,  this  subject  necessarily  forms  a  substantive 
branch  of  inquiry.  Still,  however,  little  more  can  be  ex- 
pected in  a  preparatory  title,  (which  is  really  so  extensive 
in  itself,)  than  that  I  should  present  to  you,  in  a  few  lec- 
tures, the  skiagram,  or  leading  outlines  of  this  very  inter- 
esting portion  of  your  studies;  and  that  I  should  furnish 
you  with  the  means  of  enlarging  your  knowledge  therein, 
and  urge  you  to  employ  them  with  method,  and  pcrsc wr- 
ing diligence.  When  I  say  that  this  is  an  introductory 
study,  it  is  with  this  qualification, — that  though  the  philo- 
sophy or  elements  of  this  extensive  subject  should  be  pre- 
viously acquired,  yet  that  every  one  who  aims  at  a  thorough 
knowledge  of  law,  must  make  natural  jurisprudence  his 
study  through  life,  during  which  he  will  have  increasing 
proofs  of  the  intimate  connexion  between  just  notions  of 
ethicks,  and  the  enactment  of  salutary  laws. 

In  most  of  the  following  lectures,  therefore,  of  the  First 
Title  of  my  course,  I  shall  endeavour  to  condense  the  lead- 
ing principles  of  natural  law,  so  as  to  place  before  you  a 

-Bac.  Work-,  vol  1.  100. 


Lect.  I.]  NATURE    OF    MAN.  13 

eoup  d'uil  of  a  vast  science,  whose  minute  learning  it  will 
be  your  duty,  as  well  as  pleasing  interest,  to  study  long 
after  your  legal  noviciate. 

In  the  present  lecture  I  shall  confine  myself  to  some  ob- 
servations on  the  nature  of  man,  his  moral  and  physical 
constitution,  and  shew  from  these  how  essential  to  his  feli- 
city is  the  just  use  of  his  peculiar  faculties,  with  regard  to 
God,  the  maker  of  the  world;  to  himself,  as  a  member  of 
this  great  system;  and  to  his  associates  in  the  various  busi- 
ness and  enjoyments  of  life. 

Wide  as  is  the  system  of  duties,  and  numerous  as  are  all 
the  constitutions  of  society,  whether  natural  and  implied, 
or  artificial  and  positive,  you  will  find  them,  we  apprehend, 
to  flow  from  some  few  broad,  general  and  intelligible  prin- 
ciples, apprehensible  to  all,  and  disputable  by  none,  and 
which  have  the  strictest  of  that  certainty  which  is  called 
moral,  in  contradistinction  to  mathematical. 

Man,  we  have  said,  should  be  considered  by  the  philoso- 
phical legislator  and  jurist,  in  his  animal  and  moral  nature, 
these  being  the  only  two  divisions  of  his  peculiar  inclina- 
tions and  capacities.  To  the  first  appertains  his  desire  of 
food,  of  vesture,  and  of  shelter;  of  the  concourse  of  the 
sexes,  and  of  the  preservation  of  health  and  of  life.  To  the 
second  belong  his  moral  sympathies,  and  his  intellectual 
capacities;  the  first  including  his  affection  for  his  offspring, 
for  his  parents,  his  relatives,  and  for  mankind  at  large;  and 
the  second  his  reasoning  faculties,  his  pursuit  of  science  and 
knowledge,  and  his  taste  for  the  arts.  The  sympathetic 
affections  he  possesses  in  common  with  inferior  animals, 
being  distinguished  from,  and  elevated  above  them,  by  his 
endowment  with  those  qualities  by  which  he  acquires  know- 
ledge, and  distinguishes  between  right  and  wrong.  Man, 
consequent])',  becomes  subject  to  a  body  of  rules  of  which 
they  cannot  be  the  subject,  because  they  are  insensible  of 


14  01      Tilt     OHIGIN    A.ND  I. ret.  I 

the  qualities  and  affections  which  these  rules  are  designed 
to  prescribe,  encourage  or  control. 

(2  )  idea  of  some  In  order  fully  to  comprehend  the  con- 
Philosophers  as  to  the  stItution  of  any  body  it  is  essential  that 
triple  nature  of  the  J  J 

soul,  &c.  we  view  it  in  all  its  integral  parts.     Man 

is  evidently  a  being  composed  of  a  growing,  vital,  and 
sentient  substance,  denominated  body,  and  of  a  subtile  or 
immaterial  something,  called  soul,  which  is  of  itself  en- 
dued with  various  powers  and  affections,  that  impart  to  the 
corporeal  parts,  and  to  the  being  in  his  integrity,  all  those 
characteristicks  which  form  man,  and  distinguish  him  from 
every  other  being.  It  was  the  opinion  of  some  ancient 
philosophers,  that  the  visible  and  material  part  of  man  is 
rather  a  secretion,  or  the  result  of  certain  operations,  of  the 
soul,  than  a  distinct  and  independent  substance.  They  con- 
sidered the  soul  itself  to  be  composed  of  three  distinct  prin- 
ciples, viz.  rational,  sensitive  and  vegetative,  and  that  each 
was  destined  to  perform  distinct  offices  in  the  human  econ- 
omy, as  they  were  the  sources  either  of  reason,  of  life,  or 
of  nutrition.  Others  varied  this  theory  a  little,  by  main- 
taining that  man  is  a  being  possessed,  not  merely  of  a  soul 
operating  by  three  principles,  but  of  three  distinct  souls, 
viz.  rational,  sensitive  and  vegetable;  and  that  as  the  first 
and  second  of  these  are  the  sources  of  life  and  intellectual- 
ity, so  is  the  third  the  fountain  of  nutrition  or  growth.  The 
celebrated  Linnaeus,  more  recently,  in  his  well  known  apho- 
rism, seems  to  consider  man,  in  common  with  all  other  an- 
imals, as  endued  with  three  distinct  principles,  one  or  the 
other  of  which  is  common  to  the  other  two  kingdoms  of 
nature.  This  philosopher,  eager  in  the  search  of  criterions 
by  which  all  created  entities  should  be  classed,  says  'Mi* 
neralia  crescunt,  vegetabilia  crescunt  et  vivunt,  animalia 
creseunt,  vivunt  et  sentiunt,'  or,  in  other  words,  that  mi- 
nerals grow,  vegetables  grow  and  live,  animals  grow,  live 
and  feel.     It  is  not  for  me  to  criticise  the  philosophy  of  so 


Lect.  1.)  xAriJRi:   of   max.  1.5 

great  a  master  as  Linnaeus,  or  to  find  fault,  on  such  an  occa- 
sion as  the  present,  with  a  favourite  tenet  of  one  whose  in- 
tellectual vision  scarce  knew  a  limit,  whose  verbal  accuracy 
was  remarkable,  and  whose  very  errors,  amidst  the  halo 
which  surrounds  his  name,  assume  to  themselves  almost  the 
body  and  form  of  conceded  truths.  It  is  obvious,  however, 
that  this  aphorism  is  rather  euphonic  than  sound;  that  it  is 
neither  philosophically  correct,  nor  sufficiently  comprehen- 
sive, if  true,  for  its  contemplated  object.  If  we  render 
crescunt  by  the  word  grow,  it  cannot  be  applied  to  mine- 
rals, for  it  is  only  organized  and  living  bodies  which  are  ca- 
pable of  growth;  minerals  may  increase  their  -"olume  by 
accretion,  concretion,  crystallization,  &c.  &c,  but  it  cannot 
be  predicated  of  them  that  they  grow.  So,  if  we  render  the 
word  crescunt  by  increase,  it  would  be  improper  to  say 
that  vegetables  and  animals  increase,  since  increase  is  essen- 
tially different  from  growth,  this  latter  being  always  effect- 
ed by  nutrition,  which  incorporates  into  the  fibre,  and  as- 
similates to  itself,  matter  taken  ab  extra.  The  enlargement 
of  the  volume  by  growth,  is  peculiar  to  bodies  possessed  of 
an  internal  adjustment  01  organization,  and  endued  with  cer- 
tain degrees  of  vitality;  whereas  increase  takes  place  without 
any  such  organization,  assimilation  or  vitality:  philosophi- 
cally speaking,  therefore,  this  word  should  not  be  applied 
either  to  animals  or  vegetables.*  But  this  aphorism  is  still 
more  defective  in  regard  to  man,  for  though  man,  in  his 
mere  animal  nature,  grows,  lives  and  feels, — yet,  in  his 
integrity,  he  is  something  more  than  an  animal,  being  pos- 
sessed of  principles  wholly  distinct  from,  and  independent 
of  those  to  which  we  refer  the  growth,  vitality  and  sen- 
sation of  the  rest  of  animated  nature.  Man,  in  common 
with  every  other  animal,  is  possessed  of  an  innate  active 
power,  which  never  ceases  to  operate  until  death,  and  by 
which  sensation,  life,  growth,  motion,  and  every  animal 
power  are   sustained.      This  vis  actuosa  is  as  distinct  and 


1 5  OF    THE    ORIGIN    AND  [Lect  I. 

perpetual  in  its  operation  in  the  most  degraded  and  brutal- 
ized man,  as  in  the  most  enlightened  of  his  species;  and  as 
perfect,  too,  in  beings  the  lowest  in  the  scale  of  intellectu- 
ality and  animality,  as  in  the  highest.      By  this  vis  vitulis 
is  it  that  animals  live,  are  animated,  nourished,  moved.      It 
is,  in  part,  by  this  power  that  they  sleep,  wake,  feel,  select, 
refuse,  and  perform  various  other  animal  functions;  yet  no 
one  can  prove,  though  it  has  been  so  asserted,  that  these  flow 
from  mind  or  soul.     Hence  is  it  that  it  becomes  so  essen- 
tial to  ascertain  correctly  the  criterions  which  really  distin- 
guish mind   from  matter;   animal   life  from  vegetable  life; 
animal  instinct  from  vegetable  instinct;  animal  and  vegeta- 
ble life  from  intellectual  life;  instinct  from  sensation;  and 
sensation  from  perception  or  intelligence.      False  theories 
and   crude  notions  in   physicks,  generate  false  theories   in 
morals,  and  consequently  in  jurisprudence;  and   this  very 
neglect,  or  want  of  properly  distinguishing  between  beings 
organized  and   unorganized,  animal  and  vegetable,  intelli- 
gent and  unintelligent,  has  proved  a  fruitful  source  of  mis- 
chievous error.      To  this  cause  is  it  that  we  are  to  refer  the 
singular  fact,  that  even  distinguished  names  have  been  ar- 
rayed  on  the  side  of  that   philosophy  which  degrades  our 
species  to  the  level  of  the   brute  animal.      We  should   re- 
member, however,  with   Cicero,  that  'nihil  tarn  absurdum 
quod   non  dictum  sit  ab  aliquo  philosophorum;'  and  hence 
we  should  learn  to  be  jealous  of  the  influence  of  mere  au- 
thority; and,  in  matters  oi  vital  interest  at  least,  to  refuse 
to  philosophy  what  is  either  not  understood,  or  is  condemn- 
ed by  common  sense. 

We  should,  perhaps,  be  travelling  out  of  the  province  of 
this  chair,  were  we  to  enter  into  a  minute  inquiry  into  the 
topicks  to  which  we  have  alluded.  They  should  be  well 
understood  by  the  inquisitive  student;  but  they  are  not  to 
be  sought  in  the  pages  of  even  philosophical  jurisprudents; 
they  must  be  studied  in  the  numerous  volumes  which  treat 


L*ct.  I.]  NAITRE     OF     MAN.  17 

of  physicks  and  mctaphysicks,  and  particularly  in  those  on 
human,  animal  and  vegetable  physiology.  A  very  few 
words  from  us,  therefore,  on  these  interesting  doctrines, 
will  suffice  for  our  present  purpose,  which  is  merely  to  es- 
tablish the  fact,  that  all  sound  legislation,  and  interpretation 
of  laws,  should  be  based  on  an  accurate  acquaintance  with 
man's  physical,  intellectual  and  moral  character. 

We  propose  now  to  take  a  brief  survey  of  most  of  the 
criterions  which  distinguish  matter  from  mind;  the  princi- 
ple of  animal  life,  from  the  principle  of  the  mind  or  soul; 
the  features  which  distinguish  the  animal,  vegetable  and 
mineral  creation  from  each  other:  and,  finally,  those  which 
characterize  man,  and  separate  him  from  all  other  animated 
beings. 

We  are  aware  that  classification  is  often  dangerous,  and 
that  the  desire  of  making  it  either  very  comprehensive,  or 
the  reverse,  often  betrays  the  author  into  serious  errors. 
We  are  likewise  conscious  that  these  methodical  arrange- 
ments not  only  savour  of  theory,  but  often  originate  in  vain 
and  mistaken  views.  Classification,  however,  is  sometimes 
useful  and  correct.  All  that  we  now  aim  at,  is  to  assist  the 
students'  future  inquiries  by  presenting  to  him  an  outline 
which,  at  a  proper  season,  he  may  fill  up  by  his  own  re- 
searches. 

We  presume,  then,  that  all  entities,  or  things  existing, 
of  which  man  has  any  knowledge,  may  be  arranged  in  the 
following  manner: 

1.  Mind. 

2.  Matter. 
Matter  is  either, 

1.  Organized. 

2.  Unorganized. 
Unorganized  matter  has  neither 

'  1.   Life, 
2.    Instinct, 


IS 


OF    THE    ORIGIN    AND  [Lcct.  L 


3.   Sensation,  nor 
■4.   Intelligence. 
Organized  matter  is  either 

1.  Animals, 

2.  Vegetables. 
Animals  are  either, 

1.  With  sensation, 

2.  Without  sensation.  (Doubtful.) 
Animals  with  sensation  are  either, 

1.  With  intelligence. 

2.  Without  intelligence.  (Doubtful.) 
Animals  with  intelligence  are 

1.  Those  with  sensation,  instinct  and  perception,  or  a 
very  limited  intelligence;  without  a  rational  soul;  not  moral 
agents;  whose  actions  are  not  imputable;  who  are  incapa- 
ble of  society  and  government;  not  endowed  with  speech, 
though  sometimes  capable  of  uttering  articulate  sounds;  and 
whose  souls  probably  perish  with  their  bodies.  This  class 
embraces  all  animals  except  man. 

2.  Those  with  sensation,  instinct,  great  intelligence,  a 
rational  soul;  who  are  moral  agents;  whose  actions  are  im- 
putable; who  are  endowed  with  speech;  whose  souls  are 
incapable  of  disease,  and  certainly  immortal;  and  who  arc 
highly  fitted  for  society,  government  and  law.  This  class 
embraces  no  other  animal  than  man. 

Vegetables  arc  possessed  of 

1.  Life. 

2.  Instinct. 
Vegetables  are  not  possessed  of 

1.  Sensation. 

2.  Intelligence. 

Having  thus  briefly  stated  our  views  as  to  the  classifica- 
tion of  terrestrial  existences,  we  shall  now  advert  to  some 
of  the  criterions  by  which  \vc  are  enabled  to  distinguish 
the  three  great  kingdoms  of  nature. 


Lect.  I]  NATURE    OF    MAN.  19 

First.  Mind,  being  neither  tangible  nor  visible,  can  only 
be  known  to  us  as  it  is  manifested  by  certain  operations  and 
effects.  It  makes  use  of  the  animal  organs  and  functions 
of  the  body  in  which  it  resides,  in  order  to  make  itself  cog- 
nizable. Our  knowledge  of  mind,  however,  is  principally 
derived  to  us  through  the  medium  of  reflection  and  rea- 
son, either  as  to  the  action  of  our  own  mind,  or  that  of 
others.  By  some  philosophers  the  mind  has  been  supposed 
to  be  wholly  immaterial,  and  certainly  to  survive  the  body. 
By  others  it  is  contended  that  it  is  grossly  material;  that  it 
has  no  separate  existence  from  the  body;  and  that  it  is,  in 
fact,  the  mere  result  of  the  peculiar  organization  of  the  body, 
and  consequently  perishes  with  it.  There  is,  however,  a 
third  class,  who  urge  that  it  is  a  distinct  and  independent 
material  entity,  but  composed  of  such  tenuous,  and  ex- 
tremely sublimated  matter  as  will  never  perish,  viz:  of 
those  primogenial  particles  which  by  some  philosophers  are 
supposed  to  have  existed  from  all  eternity.  This  class  of 
theorists  disclaim  the  name  of  materialists,  and,  we  think, 
correctly,  as  few,  if  any  of  the  pernicious  errors  of  the 
other  sect  of  materialists,  seem  to  flow  from  their  doctrine. 

Secondly.  Let  us  now  advert  to  Matter.  If  it  be  un- 
organized, it  is  negatively  characterized  by  the  want  of  life, 
instinct,  sensation  and  intelligence.  It  is  also  affirmative- 
ly designated  by  a  fortuitous  formal  origin;  by  increase  in 
volume  from  accretion,  crystallization,  &c.  and  by  dissolu- 
tion through  the  agency  of  chemical  and  mechanical  force. 
If  the  matter,  on  the  other  hand,  be  organized,  it  is  then 
found  to  possess  an  origin  by  generation;  a  vital  or  living 
principle;  an  enlargement  of  its  parts  by  growth  or  nutri- 
tion; and  its  dissolution  is  by  death.  These  properties  are 
common  to  all  organized  matter,  whether  vegetable  or  ani- 
mal. There  are  however,  as  we  shall  presently  find,  va- 
rious qualities  peculiar  to  vegetable  existences;  others  to 
animal  beings;  and  the  great  desideratum  is,  to  ascertain 


-20  OV    THE    ORIGIN     AND  [Lerl-  I 

the  exact  boundary,  the  precise  principle  which  defines  the 
mineral  from  the  vegetable,  the  vegetable  from  the  animal, 
the  animal  of  intelligence  and  reason,  from  those,  if  any, 
which  are  endued  with  neither.  In  the  more  perfect  spe- 
cimens of  each  of  the  three  grand  divisions  of  nature,  the 
philosopher  has  been  at  no  loss  for  critcrions  whereby  to 
distinguish  the  one  from  the  other.  But  as  he  pursues  his 
investigation,  he  meets  with  individuals  so  anomalously 
constituted,  as  to  render  it  difficult,  if  not  impracticable,  to 
say  with  certainty  to  which  of  the  three  divisions  they  real- 
ly appertain.  Strange  as  it  may  appear,  the  mineral  king- 
dom seems  to  fade  away  at  its  extreme  boundaries,  and  to 
lose  itself  in  the  animal  kingdom  on  the  one  side,  and  in 
the  vegetable  on  the  other.  So,  the  vegetable  creation  ap- 
pears to  be  lost  in  the  animal;  and  the  two  great  divisions 
of  the  animal  world,  in  their  turn,  present  us  with  beings 
claiming  to  be  rational,  whilst  others,  who  are  really  men, 
have  suffered  their  moral  and  intellectual  natures  so  effec- 
tually to  decline,  as  to  render  it  doubtful  to  what  divi- 
sion they  actually  belong.  To  get  rid  of  these  perplexities 
required  much  careful  observation,  sound  judgment,  and  a 
firm  reliance  on  the  wholesome  position,  that  though  the 
God  of  nature  has  united  every  link  in  the  vast  chain  of 
his  creation,  yet  has  every  link  of  that  chain  its  own  dis- 
tinctive and  independent  character,  which  must  for  ever 
keep  it  in  its  assigned  place,  preserve  its  exact  identity, 
exclude  all  intermixture,  and  claim  for  it,  to  all  eternity,  the 
precise  character  impressed  on  it  at  its  original  formation. 
Every  class  of  beings  has  its  fixed  laws,  which  endure  no 
change  from  time  or  circumstance;  the  mineral  must  re- 
main such  for  ever;  the  vegetable  can  never  aspire  to  the 
rank  of  animal,  nor  degenerate  into  that  of  mineral.  The 
animal  of  intelligence  can  never  lose  its  moral  and  respon- 
sible nature;  nor  can  the  most  careful  tuition  of  the  most 
sagacious  of  brute  animals,  render  them  reasonable  or  moral 


LML  L]  NATURE    OF    MAN.  21 

agents.  It  is  true,  their  outward  appearance  may  be  great- 
ly changed  by  physical  causes,  and  their  inclinations  and 
dispositions  undergo  a  correspondent  change;  but  their  es- 
sential character  and  identity  remain  the  same.  These  are 
important  truths,  which,  we  think,  are  now  fully  establish- 
ed. The  criterions  which  distinguish  the  mineral,  vegeta- 
ble and  animal  creations  from  each  other,  as  also  man  from 
those  other  animals  which  bear  to  him  the  closest  resem- 
blance, are  at  this  time  pretty  well  understood.  We  should 
be  pleased  to  pass  them  over  in  silence,  and  content  our- 
selves with  assuming  the  ground,  for  the  few  reasons  we 
have  already  intimated.  But  the  young  inquirer  after  truth 
may,  perhaps,  prefer  that  we  should  briefly  allude  to  these 
criterions,  and  point  out  a  few  of  the  instances  in  which 
the  contiguous  limits  of  these  three  great  kingdoms  of  na- 
ture have  been  supposed  to  fade,  or  to  be  lost  in  each  other. 
As  to  the  instances  in  which  it  has  been  found  difficult  to 
say  with  certainty  whether  they  were  mineral,  vegetable 
or  animal,  we  shall  enumerate  only  a  few,  to  serve  as  ex- 
amples of  the  nature  of  the  doubt. 

First,  then:  Corals  and  Sponges  were,  at  one  time,  re- 
ferred by  Beaumont  and  Woodward  to  the  head  of  mineral 
substances;  by  Ray  and  Lister  to  that  of  vegetables;  and 
finally,  under  the  patronage  of  the  learned  Mr.  Parkinson 
and  others,  they  have  assumed  the  rank  of  animals. 

Secondly.  On  the  other  hand,  some  vegetables  have  for 
a  time  been  regarded  as  minerals.  Of  this  we  have  an  ex- 
ample in  the  Fontinclla  Antipyretica,  so  named  from  its 
being  a  moss  of  such  peculiar  hardness  as  to  resist  fire,  and 
to  be  often  made  use  of  by  the  poor  in  the  north  of  Europe, 
as  a  lining  for  their  chimneys,  instead  of  mortar.  We  find 
another  example  in  a  species  of  moss  called  Byssus,  which, 
on  being  subjected  to  a  red  heat,  becomes  vitrified,  instead 
of  consuming,  as  other  vegetable  substances  do. 


22  OF    THE    ORIGIN    AND  [Lcct.  I. 

Thirdly.  In  the  Asbestos  we  find  what  is  called  the 
connecting  link  between  the  mineral  and  vegetable  world. 
The  fracture  of  this  mineral  is  in  parallel  filaments,  not 
unlike  those  often  found  in  wood. 

Fourthly.  In  the  Polypus,  on  the  other  hand,  we  see 
the  being  pointed  out  by  some  as  the  link  which  unites  the 
animal  with  the  vegetable  creation.  It  is,  indeed,  a  very 
extraordinary  animal,  being  propagated  like  a  vegetable, 
by  slips  or  shoots.  If  cut  into  any  number  of  pieces,  each 
piece  becomes,  in  a  short  time,  a  distinct  and  perfect  ani- 
mal. It  may  be  turned  inside  out,  with  little  or  no  dis- 
turbance of  its  healthy  action.  It  is  without  sex,  and  ap- 
pears to  be  as  regardless  of  size,  as  it  is  of  all  the  other  usual 
harmonies  of  animal  nature,  having  the  power  of  enlarging 
or  contracting  its  volume  at  pleasure,  many  hundred  times 
its  accustomed  bulk. 

Many  other  of  these  anomalies  might  be  enumerated,  but 
enough  have  been  stated  for  our  purpose.  In  regard  to 
unorganized  bodies,  there  is  now  not  the  least  danger  of 
confounding  them  with  those  which  are  organized,  bo  they 
vegetable  or  animal.  But  how  are  we  to  ascertain  the  dis- 
tinguishing features  which,  with  unerring  certainty,  sepa- 
rate the  animal  from  the  vegetable?  This  has,  indeed, 
been  a  point  of  extreme  difficulty.  The  various  theories 
advanced  on  this  subject,  have  been  sustained  by  much 
plausibility;  but  nearly  all  of  them  have,  in  turn,  been  re- 
futed, or  reasonably  doubted.  Still,  however,  the  subject 
is  sufficiently  understood  at  this  time,  for  every  useful  and 
practical  purpose. 

The  criterions  which  have  been  supposed  by  different 
writers,  to  be  peculiar  to  animal  life,  and  to  separate  it 
clearly  from  vegetable  life,  are  1.  Locomotion;  2.  A  sto- 
mach, intestines,  and  an  alimentary  canal;  3.  The  yielding 
of  ammonia,  on  analysis;  4.  A  limited  intelligence,  called 
perception;  5.  Nourishment  from  organized  matter  alone; 


Lcct.  I]  NATURE    OF    MAN.  23 

6.  Sensation;  7.  Muscularity;  S.  Voluntary  motion.  Each 
of  these  has  been  relied  on  as  the  sure  criterion,  and  all 
have  been  denied,  by  some  one  or  other,  to  be  certain  tests. 
A  volume  would  scarce  suffice  to  unfold  the  arguments 
which  have  been  adduced  for  and  against  these  supposed 
attendants  on  animality.  A  word  or  two,  however,  is  all 
that  can  be  allowed  us,  who,  it  is  to  be  feared,  have  already 
trespassed  too  long  on  what  some  may  think  appropriated 
grounds. 

1.  Locomotion  has  been  denied  to  be  the  test,  because 
there  are  plants  which  possess  a  locomotive  faculty,  whilst, 
on  the  other  hand,  there  are  several  instances  in  which  it 
is  denied  to  animals.  Should  the  former  fact,  however,  be 
questioned,  it  is  quite  certain  that  the  latter  is  true,  as  we 
find  is  the  case  with  corals,  corallines,  oysters,  muscles, 
sponges,  &c. 

2.  The  stomach,  fyc.  have  been  denied  to  be  this  long 
sought  for  criterion,  because  the  mere  form  of  the  instru- 
ment or  organ  of  digestion,  is  not  sufficient  to  constitute 
an  essential  difference,  particularly  as  vegetables  possess  a 
power  and  organs  so  similar  in  their  operations,  as  to  be 
scarcely  distinguishable;  and  animals,  on  the  other  hand,  are 
in  several  instances  either  wholly  without  these  organs, 
or  appear  to  be  greatly  if  not  wholly  independent  of  their 
use. 

3.  t/lmmonia  on  analysis,  has  likewise  been  found  to  be 
a  very  unsatisfactory  criterion,  since  it  is  now  ascertained 
that  most  vegetables  yield,  upon  destructive  distillation,  a 
small  portion  of  ammonia. 

4.  Perception,  or  limited  intelligence.  This,  although 
it  is  found  in  all  animals,  differs  so  little,  if  at  all,  from  the 
surprising  instinct  of  some  vegetables,  that  it  furnishes,  we 
think,  a  very  fallible  mark  of  animality.  There  are,  indeed, 
instances  of  vegetable  instinct  to  remarkable,  that  they 
would  seem  to  approach  much  nearer  to  the  operations  of 


24  OF    THE    ORIGIN    AND  •-•  rt.  I.] 

even  a  reasoning  faculty,  than  of  animal  instinct.  We  need 
not  specify  them,  as  the  student,  in  the  course  of  his  gene- 
ral reading,  will  become  acquainted  with  them,  whilst  to 
the  scholar  the  subject,  we  presume,  is  too  familiar  to  re- 
quire being  further  dwelt  on  by  me. 

5.  The  next  criterion  of  animality  which  has  been  great- 
ly relied  on,  is  that  animals  are  supposed  to  possess  a  capa- 
city of  deriving  nourishment  from  organized  matter  alone, 
whilst  vegetable  existence  is  sustained  mainly  by  unorgan- 
ized matter.  This  ingenious  suggestion  is  advanced  by  M. 
de  Mirbel,  a  learned  French  physiologist,  and  is  very  fa- 
vourably spoken  of  by  Sir  Edward  Smith,  who,  in  his 
pleasing  'Introduction  to  Botany,'  gives  us  the  following 
extract  from  M.  Mirbel.  'Plants  alone  have  a  power  of 
deriving  nourishment,  though  not  indeed  exclusively?  from 
inorganic  matter,  as  mere  earths,  salts  or  airs,  substances 
certainly  incapable  of  serving  as  food  for  any  animals,  they 
only  feeding  on  what  is,  or  has  been  organized  matter,  either 
of  a  vegetable  or  animal  nature.  So  that  it  would  seem  to 
be  the  office  of  vegetable  life  alone,  to  transform  dead  mat- 
ter into  organized  living  bodies.'  On  this  quotation  Sir 
Edward  Smith  remarks,  'it  appears  to  me  so  just,  that  I 
have  in  vain  sought  for  any  exception  to  it;*  and  M.  Riche- 
rand  adopts  unequivocally  the  same  opinion,  and  says,  that 
animals  cannot  convert  into  their  own  substance  any  of  the 
elements  of  unorganized  matter,  but  that  plants  arc  the 
great  laboratory  in  which  nature  prepares  aliment  for  ani- 
mals. It  has,  however,  been  excepted  to  by  other  phy- 
siologists, who  contend  that  vegetables  are  not  nourished 
exclusively  by  terrene  aliments,  nor  are  animals  sustained 
solely  by  vegetable  and  animal  substances.  Instances  are 
given  of  fish,  worms  and  injects,  which  derive  much  of 
their  sustenance  from  minerals,  and  even  man  has  some- 
times been  nourished  by  air,  water,  lime,  salts,  &c.  I  should; 
however,  he  inclined   to  doubt  the  accuracy  of  these  sup- 


Lect.  I.]  NATURE    OF    MAN.  25 

posed  instances.  It  appears  to  me  that  in  every  instance 
where  fish,  worms  and  men  have  been  sustained  by  unor- 
ganized matter  taken  into  the  stomach,  the  truth  is,  that 
these  materials  have  either  been  mixed  with  vegetable  and 
animal  matter,  sufficient  to  nourish  life  for  a  time,  or  the 
mere  mineral  substance  has  operated  «for  a  while  as  a  stim- 
ulus, and  the  system  has  fed  on  itself.  In  the  common 
case  of  the  earthworm,  for  example,  which  feeds  on  soils, 
life  is  sustained  only  by  the  vegetable  fibre  which  is  con- 
tained in  such  soils,  and  we  apprehend  that  the  worm  would 
certainly  die  in  a  very  short  time,  if  fed  on  mere  virgin 
earth.  This  criterion,  therefore,  appears  to  us  to  be  wholly 
unexceptionable. 

6.  Sensation.  There  is  no  idea  more  universally  pre- 
valent, than  thai  life  and  sensation  are  necessarily  associat- 
ed; and  an  animal  without  sensation  appears  to  be  a  lusus 
naturae  which  the  mind  revolts  at,  and  even  philosophical 
faith  can  scarcely  comprehend.  It  is,  however,  contended 
by  some,  that  sensation  is  not  essential  to  the  principle  of 
animal  life,  and  that  there  are  animals  as  wholly  destitute 
of  it,  as  vegetables  are  supposed  to  be;  and,  indeed,  that 
there  is  in  nature  a  scale  of  sensation,  in  the  exact  ratio  of 
the  degree  of  intelligence.  Sensation,  say  they,  depends 
upon  the  presence  of  a  nervous  system  of  some  kind;  and 
there  are  animals  wholly  without  this  structure,  and  con- 
sequently' entirely  destitute  of  feeling!  In  proof  of  this 
strange  doctrine,  they  cite  the  case  of  those  animals  which 
possess  the  astonishing  power  of  spontaneously  casting  off 
their  limbs,  when  molested,  and  of  renewing  them  again  by 
a  formative  process  peculiar  to  them.  They  also  urge  the 
case  of  the  gadfly,  which,  when  fastened  to  the  hand,  suf- 
fers itself  to  be  cut  or  taken  to  pieces,  before  it  will  release 
its  hold,  and,  indeed,  apparently  without  much  annoyance 
to  its  comfort.  The  polypus  is  also  mentioned,  which 
retains  its  full  health  though  cut  to  pieces,  and  turned  in- 
4 


2(,  OF    THE    ORIGIN    AND  tLect-  *• 

side  out.  But  all  this,  we  think,  is  far  from  proof  of  the 
absence  of  sensation;  these  animals  may  feel  exquisitely, 
but  the  principle  of  life  is  either  extremely  tenacious  in 
them,  or  the  organs  in  which  it  mainly  resides,  may  not 
have  been  disturbed.  That  there  are,  however,  in  nature, 
degrees  of  sensation -bearing  a  close  relation  to  the  degree 
of  intelligence,  and  the  perfection  of  the  nervous  structure, 
cannot  be  doubted;  but  that  there  are  any  animals  wholly 
without  sensation,  has  never  been,  we  think,  by  any  means 
satisfactorily  proved;  this,  therefore,  we  regard  as  a  second 
infallible  criterion  of  animality.  As  to  the  shocking  expe- 
riments on  animal  life,  which  have  been  made  by  Spallan- 
zani,  Ribaud,  Valiiant,  Redi  and  others,  in  which  beetles 
have  been  stuffed  with  cotton  for  many  months;  the  tor- 
toise and  the  snail  have  been  deprived,  the  one  of  its 
brain,  and  the  other  of  its  head,  and  yet  lived;  it  is  suffi- 
cient to  say  that,  in  the  beetle  the  organ  of  life  had  not 
been  touched;  in  the  tortoise  the  brain  was  not  essential, 
as  the  other  parts  of  the  nervous  system  may  have  been 
sufficient  to  sustain  life  for  a  time;  and  as  to  the  snail,  its 
brain  does  not  reside  in  its  head,  and  it  is  well  known  that 
the  snail  can,  by  a  formative  power,  even  renew  its  head, 
when  deprived  of  it. 

7.  Muscularity.  This,  likewise,  has  been  denied  to  be 
a  sure  criterion,  because  of  the  similarity  of  the  contractil- 
ity and  irritability  of  the  vegetable  and  animal  fibre.  Hut 
muscularity  is  different  from  both,  and  although  there  are 
animals  of  such  extreme  simplicity  of  structure,  as  appa- 
rently to  be  mere  globules  of  jelly  infinitely  small;  yet 
even  in  them,  the  motion  which  they  effect  by  alternate 
contraction  and  expansion,  may  be  the  result  of  muscular 
action,  and  in  all  probability  is.  Muscularity,  therefore, 
we  regard  as  a  third  infallible  mark  of  animality. 

But,  should  even  these  three  fail  us,  as  the  sure  criie- 
rions  we  are  in  search  of,  we  think  we  have  one  which  can 


Lect.  I]  NATURE    OP    MAN.  27 

admit  of  no  dispute;  and,  in  the  present  inquiry,  one  cer- 
tain distinctive  mark  answers  every  purpose;   we  allude, 

S.  To  Voluntary  motion.  We  have  seen  that  there  are 
animals  which  do  net  possess  a  locomotive  power;  so  there 
are  vegetables  which  possess  spontaneous  motion:  but  ani- 
mal life  has  never  been  known  to  exist  without  voluntary 
motion;  and  vegetable  life  has  never  been  known  to  mani- 
fest voluntary  motion.  The  madrepore,  the  coral,  the  mus- 
cle, the  oyster  cannot  voluntarily  change  their  place;  they 
are  not  endowed  with  locomotion;  but  yet  they  all  open 
and  shut  their  mouths  voluntarily,  either  to  receive  or  to 
exclude  nourishment;  they  all  move  their  muscles  etc.  vo- 
luntarily. The  motion  of  vegetables,  on  the  other  hand, 
is  wholly  involuntary.  On  the  whole,  then,  we  are  of 
opinion,  that  the  capacity  to  receive  nourishment  from  or- 
ganized matter  alone,  the  faculty  of  sensation,  the  property 
of  muscularity,  and  the  power  of  voluntary  motion,  are  the 
four  certain  properties  which  distinguish  animal  from  vege- 
table existences.  This  line  being  drawn,  it  is  easy  to  dis- 
tinguish Man  from  other  animals,  though  even  this  has  been 
denied;  and  it  is  easy  also  to  ascertain,  and  sufficiently  to 
demonstrate  the  fact,  that  all  the  differences  which  we  find 
in  the  human  family,  are  mere  varieties  flowing  from  the 
gradual  operation  of  physical  and  moral  causes,  and  conse- 
quently that  man  is  a  unit  in  the  creation,  without  different 
species.  This  has  been  most  strenuously  denied  by  some 
philosophers,  and  as  eagerly  by  all  those  who  would  seek 
some  justification  from  nature,  for  their  extermination  of 
Indian  intruders;  their  unprincipled  traffick  in  human 
beings;  and  their  packing  away,  as  cargo,  the  oppressed 
Africans,  as  creatures,  whose  nerves  are  not  as  sentient, 
and  whose  blood  is  not  as  vital,  as  those  of  the  white 
man.  The  subject  we  have  been  dwelling  on,  is  quite  too 
extensive  for  us  to  present  you  with  even  its  full  outlines; 
but  it  is  important  to  urge  it  on  your  attention,  as  one  too 


28  OP    THE    ORIGIN    AND  [Tscl.  1 

closely  allied  to  an  enlarged  and  philosophical  study  of  \our 
peculiar  science,  to  be  neglected  by  you.  But  to  proceed. 
In  man  we  certainly  find  a  class  of  powers  wholly  dis- 
tinct from  those  we  have  just  mentioned,  as  belonging  to 
other  animals  in  common  with  man.  Thought,  reflection, 
reminiscence,  comparison,  reason,  &c,  differ  altogether 
from  any  of  the  animal  and  vegetable  powers,  and  being 
peculiar  to  man,  are  referred  to  that  intellectual  part  of  his 
being  called  understanding,  mind  or  soul.  These  are  in 
no  degree  whatever  to  be  found  in  any  other  animal  than 
man.  That  various  animals  have  certain  functions  whicb 
often  resemble  in  their  operations  those  of  the  soul  or  mind, 
cannot  be  denied;  hut  all  of  these  are  referrible,  we  think, 
to  a  different  principle.  They  are  not  the  offspring  of  in- 
tellect, of  a  reasoning  power,  but  of  mere  perception  and 
animal  instinct;  for  though  such  animals  possess  a  species 
of  memory,  power  of  selection,  means  of  a  ervation, 

&c.  these  are  but  instincts  which  I  n  hv  an  unerring 

and  invariable  law.  They  are  not  capable  of  self-improve- 
ment; they  are  all,  as  individuals  of  the  same  species,  co- 
equal in  their  instinctive  powers.  Every  bee,  for  example, 
fashions  his  beautiful  net  work  with  equal  skill:  every  spi- 
der of  the  same  species,  weaves  his  web  with  the  same 
mathematical  perfection;  every  beaver  forms  his  cabin  on 
the   same   model,  and   with   a   like  accural  N    .'her  do 

these  animals  possess  a  moral  sense,  a  con-  .  a  know- 

ledge of  right  and  wrong,  a  sense  of  Deity.  They  know 
of  no  distinction  between  actions  mala  in  sc,  and  mala 
prohibita.  And  this  is  equally  the  case  whether  we  refer 
these  moral  distinctions,  with  Dr.  Cud  worth  and  Dr. 
Clarke,  to  the  reasoning  faculty;  or,  with  Dr.  Hutcheson, 
to  the  moral  sense;  or,  with  Mr.  Hume,  to  the  principle 
of  utility,  which,  under  his  system,  regards  virtue  and  vice 
as  merely  artificial,  all  actions  as  intrinsically  the  same, 
ind   all   moral   approbation  and  disapprobation  as  flowing 


Lect.  I.]  NATFRE    OF    MAN.  29 

solely  from  arbitrary  or  extrinsic  circumstances.  Whilst 
some  philosophers,  therefore^  make  man  and  brute  essen- 
tially the  same  beings,  varying  only  in  the  degree  of  intel- 
lectuality, the  celebrated  Linnreus,  (perhaps  without  in- 
tending to  do  so)  has  given  an  indirect  sanction  to  this 
idea,  by  the  place  which  he  has  assigned  to  man  in  his 
classification  of  animated  nature.  Man,  we  presume,  should 
have  formed  a  distinct  and  independent  class  in  the  syste- 
ma  naturae  of  that  enlightened  philosopher,  as  he  unques- 
tionably does  in  the  scale  of  being.  Man  is  constituted  by 
the  God  of  nature,  a  unit  in  the  creation.  There  are  no 
generical  differences  in  the  class  to  which  he  really  belongs, 
nor  is  he  allied  to  any  other  created  being:  his  place,  there- 
fore, under  the  class  Mammalia,  order  Primates,  and 
genus  Homo,  in  the  system  of  this  distinguished  naturalist, 
is  derogatory  to  the  high  nature  and  station  which  have 
been  assigned  to  man  by  Him  who  created  him.  Man, 
not  being  a  mere  animal,  should  not  have  been  associated 
with  the  Simia  Troglodytes,  or  Angola  Ape;  with  the 
Simia  Satyrus,  or  Ourang  Outang;  and  with  the  Vespcr- 
tilio  Murinus,  or  common  bat. 

Some  justification,  however,  for  this  arrangement  is 
sought  in  the  ostensible  design  of  Linnaeus,  to  take  his 
indicia  of  classification  from  the  external  appearances  of 
the  animal,  vegetable  and  mineral  creations;  and  conse- 
quently, as  men,  apes,  ourang  outangs,  whales  and  bats 
nourish  their  young  from  a  similar  fountain,  and  agree  in  a 
few  othpr  respects,  they  must  all  be  arranged  under  the 
class  Mammalia,  and  order  Primates.  We  still  think, 
however,  that  as  man  is  in  truth  the  lord  of  the  creation, 
he  should  have  found  in  the  system  of  this  philosopher,  a 
station  which  should  have  given  less  countenance  to  the  in- 
iidel  notions  of  a  Monboddo,  a  Helvetius,  a  Buffon,  or  a  Dar- 
win;  the  three  first  of  whom  derive  the  human  race  from 


PO  OF    THE    ORIGIN    ANJ»  [Led.  I. 

the  family  of  monkeys,  and  the  other,  with  matchless  ab- 
surdity, from  that  very  palatable  genus,  the  oyster! 

Although  many  classes  of  animals  are 

(3.)  Man  not  mere-  » 

]y  a  gregarious,  but  found  to  maintain  a  sort  of  society,  asso- 
a  social  animal;   and      iati        jn  herds  while  othcrs  arc  solitary, 
herein  of  the  univer- 
sality of  Natural  Ju-  they  cannot  properly  he  called  social,  but 
nsprudence.  only  gregarious  animals.    If  man  pos- 

ed only  the  sympathetick,  without  the  intellectual  proper- 
ties of  his  nature,  he  were  still  only  a  gregarious  animal, 
though  found  constantly  associating.  But  in  his  actual 
state,  even  the  qualities  which  he  has  in  common  with 
brutes,  are  modified  and  coloured  by  those  which  they  hit 
denied.  His  pursuit  of  fcod,  for  example,  is  accompanied 
by  a  prospective  concern  for  the  future,  of  which  we  find 
only  a  faint  resemblance  in  the  instinct  which  prompts  the 
beaver,  the  squirrel,  and  various  other  animals,  to  secrete 
stores  over  and  above  the  stock  required  for  immediate 
want.  His  enjoyment  of  food,  also,  is  limited  by  consi- 
derations of  health  which  cannot  influence  them;  and  his 
sexual  pleasures  arc  heightened  by  tender  and  delicate 
sympathies  of  which  they  are  wholly  insensible.  So,  like- 
wise, the  love  of  life  is  in  man  enlarged  from  an  instinct 
into  an  emotion,  rendered  powerful  bv  innumerable  attach- 
ments, remembrances  and  anticipations.  In  the  gi 
of  his  appetites,  therefore,  he  betrays  a  greater  nobleness 
of  nature;  whilst  he  strongly  exhibits  the  importance  of 
his  real  destiny.  Man,  as  we  have  seen,  being  a  unit  in 
the  creation,  as  he  forms  a  class  by  himself,  in  which,  though 
there  arc  varieties,  there  are  neither  different  orders  nor 
genera  nor  species,  it  results  as  a  necessary  illation,  that  the 
same  system  of  natural  jurisprudence  is  obligatory  on,  and 
every  way  suited  to  all  the  possible  varieties  which  the  hu- 
man family  has  ever  assumed.  This  wholesome  position,  to 
which  our  foregoing  physical  observations  arc  but  prelim- 
inary, has,  nevertheless,  been  very  strenuously  denied,  and 


Lect.  I.]  NATURE    OP    MAN.  31 

this  foundation,  on  which  the  universality  of  the  moral  and 
natural  law  is  based,  has  been  questioned  by  men  of  distin- 
guished genius  and  learning.  It  is  contended  by  this  class  of 
philosophers,  that  mankind  are  made  up  of  a  number  of  spe- 
cies, radically  distinct  from  each  other:  that  Adam  was  not 
the  progenitor  of  the  human  race;  and  that  the  gradual 
operation  of  physical  and  moral  causes,  is  wholly  inade- 
quate to  the  production  of  such  varieties  in  the  human  form 
and  complexion,  as  present  themselves  in  the  different  re- 
gions of  the  earth.  Assuming  this  doctrine,  they  then  ask 
with  apparent  triumph,  how  are  we  to  apply  the  rules  of 
morals  universally?  how  extend  them  to  one  species,  and 
to  another,  when  the  moral  constitutions  of  these  several 
species  are  as  various  as  their  several  aspects?  Or  how  can 
we  hope,  say  they,  that  a  similar  legislation  can  ever  suit 
the  European,  the  Hottentot,  the  Negro,  and  the  Esqui- 
maux? In  reply  to  these  objectors,  we  have  to  deny,  in  the 
first  place,  both  the  fact,  and  the  conclusion  drawn  from  it. 
The  fact  of  the  distinct  species  of  men,  has  never  beet) 
proved  by  them;  and  if  it  had,  it  does  not  follow,  as  a  ne- 
cessary conclusion,  that  there  would  be  a  correspondent 
variety  in  their  moral  constitution.  At  all  events,  the 
burthen  of  proof  as  to  the  former,  lies  clearly  on  them; 
since  it  must  be  conceded  by  them  that  the  human  family 
has  never  presented  in  nations,  or  even  in  tribes,  instances 
of  greater  disparity  than  we  find  every  day  among  indi- 
viduals of  the  same  nation  and  tribe,  or  even  of  the  same 
family,  who  are  confessedly  of  common  origin.  The  fair 
and  lovely  Circassian,  whose  venal  parents,  with  extremest 
care,  have  nurtured  her  from  tender  infancy,  encourag- 
ing in  her  the  full  developement  of  every  latent  beauty, 
and,  by  every  artificial  means,  assisting  the  influence  of 
the  cool  and  refreshing  breezes  which  come  from  the 
bright  bosom  of  the  wide  spreading  Caspian,  is,  indeed, 
a  being  of  a  heavenly  mould,  when  compared  to  the  rude 


32  OP    THE    ORIGIN    AND  [Loct.  I. 

Hottentot,  whose  country  hath  neither  hill  nor  valley; 
whose  eyes  are  not  refreshed  by  verdant  lawns;  and  whose 
complexion  meets  with  no  cooling  breeze  to 

"assuage 

The  torrid  hell  which  beams  upon  her  head.''' 

But  a  comparison  of  even  such  extremes,  will  not  justify 
the  conclusion  of  there  being  distinct  species  in  the  human 
family;  since  even  this  is,  in  truth,  nothing  more  than 
frequently  occurs  between  individuals  born  of  the  same 
parents.  One  raised  in  tenderness,  and  highly  cultivated, 
becomes  in  beauty  an  Adonis,  in  intellect  a  prodigy,  and 
in  heart  and  affections,  an  object  of  admiration  and  love; 
whilst  another,  cast  by  circumstances  on  the  rude  ocean 
of  life,  without  education,  often  becomes  rude  and  dis- 
gusting in  appearance,  coarse  in  manners,  cruel  in  heart, 
and  as  ignorant  as  the  very  brutes  with  which  it  is  his  de- 
light to  associate.  We  allege,  then,  that  mankind  are 
demonstrably  traceable  from  a  common  stuck;  that  every 
objection  which  has  ever  been  made  to  the  unity  of  the 
species,  is  conclusively  answered  in  the  history  of  man's 
moral  and  physical  condition,  throughout  the  various  re- 
gions of  the  globe.  The  small  eyes,  high  cheek  bones, 
swarthy,  copper,  olive  and  sooty  complexions,  and  low 
stature  of  many  nations  inhabiting  the  frigid  and  torrid 
zones;  the  flat  nose,  crisped  hair,  thick  lips,  di  pressed 
forehead,  form  of  the  cranium,  structure  of  the  tibia,  &.c. 
&c.  of  the  African;  the  great  differences  in  the  facial  angle, 
the  absence  of  beard,  the  elongated  mammae,  the  flat  head, 
and  all  the  infinite  varieties  in  the  external  features  and 
aspects  of  men,  are  facts  of  as  certain  and  easy  solution,  and 
more  so,  as  the  correspondent  variety  which  we  constant- 
ly find  in  the  form,  size,  colour,  &c.  of  the  animal  and  ve- 
getable kingdom  generally,  and  which  appearances  th 
very  objectors  have  never  ventured  to  ascribe  to  essential 
differences,  conceding  that  they  are,  in  all  cases,  the  r< 


Lect.  I.]  NATURE   OP    MAN.  33 

of  the  combined  operation  of  a  variety  of  physical  causes. 
We  by  no  means  intend  to  argue  further  this  long  contro- 
verted point.  It  is  sufficient  that  we  state,  in  general 
terms,  the  nature  of  the  question,  and  leave  the  discussion 
of  it  to  the  anatomist  and  physiologist,  to  whom  it  more 
properly  belongs. 

As  to  the  importance  of  the  decision,  however,  in  regard 
to  morals  and  jurisprudence,  there  can  be  no  doubt,  since 
the  unity  of  mankind  establishes  the  unity  of  the  moral 
law  by  which  they  are  to  be  governed,  although  a  diver- 
sity of  species  might  not  necessarily  destroy  the  univer- 
sality of  that  law.  The  question,  however  in  its  entirety, 
is  generally  understood  to  go  the  whole  length  of  esta- 
blishing the  position,  that  if  you  prove  the  diversity  of 
species,  you  destroy  the  certainty  and  universality  of  moral 
science,  and  excite  doubts,  not  only  as  to  whether  all  men 
have  equal  rights  by  nature,  but  whether  they  be  capable 
of  enjoying  them.  It  countenances  the  oppression  of  des- 
pots, the  reluctance  of  those  in  power  to  part  with  it,  and 
the  desire  of  the  strong  and  wicked  to  govern  the  weak 
and  ignorant,  without  the  least  regard  to  right  or  justice, 
should  they  happen  to  differ  from  their  rulers  in  colour, 
form  and  habits.  It  lessens  our  abhorrence  of  the  severi- 
ties practised  towards  the  defenceless  Indians,  and  the  cru- 
elties often  committed  in  enslaving  the  Africans;  and  final- 
ly, if  this  theory  of  the  origin  of  man  be  true;  if  the  Al- 
mighty hath  not  indeed  'made  of  one  blood  alj  nations  of 
men,  for  to  dwell  on  all  the  face  of  the  earth,'*  we  should 
have  no  general  standard  of  the  moral  ideas  and  habits  of 
different  nations,  or  even  of  different  men  in  the  same 
nation:  the  whole  philosophy  of  ethicks  would  be  con- 
founded, and  it  would  be  essential  to  a  sound  legislation, 
that  the  genesis,  not  only  of  nations  and  tribes,  but  even  of 

*  Acts  xxvii.  26.  Dent,  xxxii.  8, 


34  OF    THE    ORIGIN    AM'  [Leet.  I. 

individuals,  should   be  accurately  known.     For  either  this 
hypothesis  must  wholly  deny  the  obligation  of  moral  and 
natural  law,  or  call  upon  its  opponents  to  apply  it  exclu- 
sively to  such   nations,  tribes  or  individuals,  as  have   pre- 
served an  unmixed  lineage,  and  whose  common   origin  can 
be  accurately  traced;    or  else  there   must    be   allowed    a 
universality  of  obligation,  on  the  ground  of  expediency, 
since  it  must  be  admitted  that  it  is  at  this  time  wholly  im- 
practicable to  deduce  the  origin  even  of  nations,  much  less 
of  individuals.    If,  however,  the  burthen  of  proof  be  thrown 
on  these  captious  objectors,  (as  it  certainly  ought  to  be)  and 
they  be  embraced  by  the  natural  code,  until  they  maintain 
their  exemption   by  proving  a  distinct  origin,  and  a  rule 
of  action   more   suitable   to   their  nature,  the   theory  falls 
harmless  to  the  ground.     We  are  not  aware  of  any  other 
mode  of  avoiding  the  difficulty  resulting  from  this  hetero- 
dox doctrine,  than   the  one  we  have  just  intimated;  for  if 
there  were  originally  distinct  moral  laws,  suited  to  the  dis- 
tinct physical  nature  of  every  species,  there  can  be  now  no 
code  of  universal  obligation,  nor,  indeed,  of  special  or  par- 
ticular operation,  unless,  in  the  first  place,  a  universal  sys- 
tem may  be  allowed  to  rest  on  the  mere  impracticability  of 
any  nation  &.c,  objecting  to  be  bound,  after  it  has  failed  to 
establish  its  distinct  lineage;  or,  secondly,  on  the  ground 
that  no  nation,  for  the  same  reason,  can  make  out  its  title 
to  any  particular  moral  law.    Even  admitting,  then,  that  both 
were  originally  distinct,  and  accurately  known,  they  have 
now  become  variously  blended,  and  wholly  unknown.    The 
history  of  mankind  is,  we  know,  the  history  of  innumera- 
ble migrations;  the  south  and   the  north,  the  east  and   the 
west,  have,  by  turns,  deluged  each  other  with  the  torrent 
of  migration,  and  carried  arts  and  peace,  or  barbarism  and 
arms,   into  various   climates,   and    amongst  various  races. 
The  fertile  plains  of  Assyria  have  received  into  their  bosom 
the  inhabitants  of  the  vast,  sterile  and  elevated  central  plain 


Lect.  I.]  NATURE    OP    MAN.  35 

of  Asia;  and  the  races  of  Italy,  (themselves  transplanted 
from  the  shores  of  the  iEgean)  have  been  lost  in  the  hordes 
of  barbarians  from  Germany  and  Scandinavia,  which  have 
precipitated  themselves  upon  them.  Not  to  multiply  ex- 
amples, the  whole  story  of  mankind,  and  all  the  researches 
of  the  curious,  present  indubitable  traces  of  this  mixture 
and  confusion  of  race  and  lineage,  manners  and  laws.  I  say 
nothing  of  that  more  gradual  process  by  which  individuals, 
in  the  intercourse  established  by  trade,  curiosity,  or  the 
mere  rambling  of  chance,  perpetually  abandon  their  tribe 
and  nation,  to  mingle  themselves  with  other  families,  and 
other  communities.  There  is  no  subject  more  curious  than 
this,  whether  we  regard  the  traces  of  common  laws,  of  lan- 
guage, of  superstitions,  or  of  traditions,  which  yet  continue 
to  be  discovered.  The  intermixture  of  which  we  have 
spoken,  being  so  thorough,  there  appears  to  us  no  alter- 
native but  to  enforce  universally  that  system  of  natural 
jurisprudence,  which  the  best  lights  of  human  intelligence 
have  furnished  us.  I  repeat,  then,  that  if  there  ever  ex- 
isted a  period  in  the  history  of  the  human  kind,  in  which 
the  races  of  man  were  traceable  to  several  and  independent 
origins  or  stocks,  it  exists  no  longer,  and  the  pernicious 
objection  we  have  been  considering,  falls  to  the  ground. 

What  has  been  hitherto  said,  rests  upon  an  admission 
which  was  made  argumenti  gratid,  that  a  diversity  of 
moral  constitution  and  law,  is  necessarily  consequent  upon 
the  proof  of  a  distinct  physical  organization.  But  is  this 
necessarily  the  case?  We  apprehend  not.  The  unity  of  the 
kind  certainly  establishes  the  universality  of  the  law;  but  a 
variety  of  species  raises,  at  most,  nothing  more  than  a  pre- 
sumption of  there  being  a  correspondent  diversity  of  moral 
constitution,  and  the  proof  of  the  former  does  not  per  se  es- 
•  tablish  the  latter.  Whatever  differences  of  habits,  customs, 
and  moral  notions,  are  discoverable  in  various  nations  and 
countries,  are  imputable  in  so  slight  a  degree,  if  any,  to  the 


gg  OF    THE    ORIGIN    AND  (Led.  I. 

differences  in  organical  structure,  that  we  imagine  it  would 
puzzle  the  wisest  of  these  philosophical  sceptics  to  suggest 
any  modification  of  the  law  of  nature,  or  any  principle  of 
it,  conformable  to  the  difference  which  is  observable.  And 
were  the  fact  fully  conceded,  that  there  are  rude  nations 
whose  very  virtues  are  the  most  disgusting  vices  in  civili- 
zed life,  it  would  not  follow  that  these  notions  are  the  result 
of  their  peculiar  organization  or  complexion,  since  it  is  well 
known  that  even  among  the  most  enlightened  nations,  nay, 
in  the  most  polished  families,  there  are  sometimes  individ- 
uals whose  immoral  education  has  nearly  effaced  all  moral 
sense,  extinguished  conscience,  and  almost  obliterated  even 
the  sense  of  Deity.  But  leaving  the  whole  of  these  topicks 
to  those  who  are  disposed  to  pursue  them  further,  we  shall 
for  the  future  regard  the  moral  constitution  of  man,  and 
the  universality  of  the  natural  law,  M  postulate*,  without 
again  disputing  whether  man  has  been  aptly  classed; 
whether  the  unity  of  his  descent  be  demonstrated;  or 
whether  the  great  code  to  which  Moses,  Confucius,  Seneca 
and  Socrates  have  paid  almost  equal  homage,  be  or  be  not 
equally  applicable  to  all  conditions  of  life,  and  to  all  the 
varieties  of  mankind.  We  believe  that  what  are  known 
to  us  as  the  natural  duties  and  rights  of  man,  form  the 
subject  of  ail  law  whatever,  whether  applied  to  man's 
situation  before  his  entrance  into  communities,  and  there- 
fore called  the  'Law  of  Nature;'  or  to  the  relative  sit- 
uation of  such  various  communities  after  they  arc  establish- 
ed, and  then  called  the 'Law  of  Nation*;'  or  to  man's 
situation  within  particular  communities,  and  then  styled 
the  'Municipal  Law.' 

(4.)   Man  endued       From  what  has  already  been  said  of  the 
with  reason,  and  pro-  »  .     .  ,  „    .        , 

gressive    in    know-  nature   of   man,  it  is  perhaps  sufficiently 

ledge,  obvious  that  reason  is  a  faculty  or  power 

of  mind,  and,  as  such,  appertains  exclusively  to  man.      It 

is  that  principle  by  which  we  compare  several   ideas,  and 


Lect.  I.]  NATURE    OP    MAN.  37 

deduce  consequences  from  the  relations  which  connect  them. 
Some  philosophers  have  considered  the  reason  of  man  as 
only  an  amplification,  and  fuller  developcment  of  a  faculty 
existing  in  all  animals,  in  degrees  exactly  suited  to  their  res- 
pective natures.  On  this  subject  the  two  celebrated  French 
metaphysicians,  Des  Cartes  and  Helvetius,  have  advanced 
theories  totally  opposite  to  each  other,  whilst  both  of  them 
are  extremes,  from  which  rational  minds  cannot  fail  to  re- 
volt. According  to  Des  Cartes,  all  brutes  are  mere  animal 
machines,  having  no  one  faculty  in  common  with  man.  He 
denies  to  them  all  ideas,  sensation,  and  even  life.  With 
them  pain  and  pleasure,  baying  the  moon,  and  speed  in  the 
chase,  are  the  necessary  results  of  mere  mechanical  evolu- 
tions. Helvetius,  on  the  other  extreme,  contends  that  men 
and  brutes  differ  only  in  their  means  and  degrees  of  educa- 
tion;  that  animals  are  endued  with  reason,  and  that,  bodily 
organization  makes  the  only  difference  between  the  soul  of 
a  rhinoceros,  and  that  of  a  Newton.  The  monkey  tribe, 
who  use  their  paws  with  admirable  dexterity,  would,  ac- 
cording to  that  philosopher,  be  as  progressive  in  knowledge 
as  man,  were  it  not  for  bodily  defects,  which  repress  the 
energies  of  their  genius!  That  they  still  inhabit  the  hol- 
lows of  trees  and  rocks,  and  have  not  society  and  govern- 
ment, huts  and  palaces,  he  ascribes  to  their  inferiority  to 
man  in  numbers,  strength,  and  duration  of  life,  and  to  their 
being  nourished  by  food  so  easily  procured.  Absurd  as  the 
views  of  both  these  philosophers  surely  are,  they  had  their 
admirers.  The  enlightened  Pascal  was  charmed  with  the 
mechanical  hypothesis  of  Des  Cartes;  and  the  mental  theory 
of  Helvetius  gained  ground,  not  only  in  France,  but  on  the 
continent  generally,  and  even  in  England.  Dr.  Darwin 
has  gone  quite  as  far  as  Helvetius,  and  ascribes  all  the  ac- 
tions of  instinct  to  reason;  whilst  that  intelligent  and  agree- 
able writer,  Mr.  Smellie,  contends  that  reason  is  the  ne- 
cessary consequence  of  the  ztse  of  instinct.    That  all  these 


38 


OF    THE    ORIGIN  AND  [Lect.  I. 


views  are  erroneous,  we  entertain  not  the  least  doubt;  but 
we  have  no  occasion,  even  if  time  would  serve,  to  use  much 
exertion  in  their  refutation. 

According  to  Locke,  man  exercises,  in  the  act  of  reason- 
ing, both  sagacity  and  illation;  and  in  such  a  manner,  as  to 
display  four  distinct  powers.  If,  then,  the  brute  be  denied 
either  of  these,  he  does  not  reason,  any  more  than  those  an- 
imals which  pronounce  articulate  sounds,  can  be  said  to 
speak,  since  they  are  incapable  of  conceiving  the  idea  ex- 
pressed by  the  words  which  they  utter.  Man,  in  the  opera- 
tion of  reasoning,  discovers  proofs  by  the  faculty  of  iftOMt 
Hon.  These  he  arranges  in  such  a  manner  by  method,  as 
to  make  apparent  their  several  relations.  By  the  faculty  oi 
judgment  he  perceives  with  accuracy  these  subsisting  con- 
nexions; and,  finally,  by  illation  he  deduces  a  just  conclu- 
sion from  all  that  has  been  presented  to  lnm.  Hrute  animals, 
on  the  contrary,  are  wholly  incapable  of  mental  induction: 
they  have  neither  universal  and  abstract  ideas,  nor  the  power 
of  treasuring  up  knowledge,  though  they  may  lie  made  to  do 
a  variety  of  amusing  acts  which  bear  a  close  resemblance  to 
the  power  of  progressive  improvement  Animal  instinct 
displays  itself  in  a  manner  essentially  different  from  reason. 
Beasts  of  the  greatest  physical  powers,  and  eminently  saga- 
cious and  docile, are  nevertheless  wholly  incapable  of  exercis- 
ing dominion  or  government,  over  either  their  own  or  other 
species.  The  most  illiterate  and  dull  of  our  species,  is  able 
to  manage  the  most  intelligent  animals,  and  by  a  little  rea- 
son to  conquer  brutal  strength,  and  subject  it  to  the  most 
submissive  obedience.  It  is  true,  indeed,  that  animals  are 
not  left  to  the  guidance  of  mere  chance,  but,  on  the  contra- 
ry, are  often  skilful,  methodical  and  persevering.  But  in  all 
these  cases  they  act  by  an  invariable  law  of  their  nature: 
to  use  the  idea,  without  the  poetical  dress  of  Pope,  instinct 
must  go  right,  though  reason  may  go  wrong.  Whilst  ho- 
nest instinct  comes  a  volunteer,  reason  comes,  on  all  occn- 


Led.  I.]  NATURE    OK    MAN.  39 

sions,  at  our  call,  is  varied  at  our  will,  and  infinitely  combin- 
ed and  modified  to  subserve  every  possible  purpose  of  virtue 
or  of  vice,  of  gaining  power,  or  of  destroying  it,  of  govern- 
ing man,  or  of  being  governed.  Physical  power  and  reason 
give  man  the  sovereignty  over  creation;  brutal  strength 
and  instinct  confer  no  power  but  what  is  exactly  defined 
in  its  extent,  and  mode  of  use.  One  animal,  it  is  admit- 
ted, preys  on  another;  but  even  this  helium  omnium  in 
omnia  has  its  inflexible  laws,  which  they  cannot  violate; 
it  is  wholly  incapable  either  of  producing  an  accumulation 
of  power,  or  of  being  used  for  any  other  purpose  than  that 
for  which  it  was  established,  viz.  as  a  means  of  sustenance. 
In  its  exercise  there  is  no  attribute  of  mind;  and  in  its  con- 
sequences it  bears  no  resemblance  whatever  to  the  like 
power  when  exerted  by  man. 

But  man  in  the  use  of  reason,  makes  it  subservient  to 
many  other  purposes  than  the  acquisition  of  knowledge, 
and  the  subjection  of  his  species  to  government  and  laws. 
Nature  hath  ordained  that  in  man, 

'Custom  should  mould  to  every  clime 
The  soft  Promethean  clay.' 

He  is  consequently  the   inhabitant  of  every  region  of  the 
globe.     The  equatorial  heats,  and  hyperborean  frosts,  are 
alike  to  him.    Universal  nature  has  become  tributary  to  his 
wants,  as   he    enjoys   the   power   of  extracting   from    it, 
through  the  mechanic  arts,  what  the  united  strength  of 
thousands  of  his  species,  or  that  of  brutes,  could  never 
effect.     He  procures  his  food  in  places,  and  under  circum- 
stances, where  irrational  animals  would   perish  with  hun- 
ger;   he   renders,  by   the   nicest   culinary  processes,  that 
which  is  poisonous,  not  only  innoxious,  but  salutary;  he 
studies  his  own  physical  nature,  and  derives  from  minerals 
and  vegetables,  medicines  adapted  to  every  disease;  he  ex- 
ercises his  reason  and   affections  through   the  medium  of 
written  and  verbal  language;  by  these  he  communicates  all 


40  OJF    THE    ORIGIN   AN1>  [Lect.  I. 

his  opinions,  desires,  wants,  passions,  and  the  most  abstract 
and  refined  notions;  by  written  language  time  and  space 
are  overcome,  and  the  people  of  one  country,  and  one 
age,  are  made  familiar  with  the  opinions  and  knowledge 
of  other  countries,  and  other  ages.  In  man,  speech  is  in 
a  great  degree  the  creation  of  his  own  inventive  powers; 
the  voices  and  cries  of  brutes  are  born  with  them,  and 
never  go  beyond  a  very  limited  range;  the  instinct  of  brutes 
can  effect  nothing  which  bears  the  slightest  resemblance  to 
this  divine  attribute  of  man.  In  animals,  the  organs  of 
speech  are  often  perfect,  and  pronounciation  distinct  and 
accurate;  yet  they  possess  in  no  degree  the  power  of 
speech.  Mere  machines  nay  be  made  to  walk,  to  fly,  and 
even  to  utter  sound  surprisingly  articulate;  but  this,  in 
truth,  is  neither  walking,  flying  nor  speaking.  So  the  par- 
rot, the  magpie,  and  the  nightingale,  though  they  have  the 
tongue,  and  particularly  the  larynx,  nearly  as  well  adapted 
for  speech  as  those  in  man,  and  arc  thus  enabled  to  utter 
words,  or  articulate  sounds,  are  in  this  respect  little  else 
than  machines.  Language  is  something  more  than  the 
utterance  of  mere  words;  it  implies  thought  and  reason  as- 
sociated with  the  words;  and  as  brutes  can  neither  combine 
thought  with  articulate  sounds,  nor  unite  nor  separate  ideas, 
they  are  incapable  both  of  reason  and  of  speech. 

Although  birds  and  other  animals  have  been  sometimes 
taught  to  mimic  man  in  the  pre-eminent  and  ennobling 
faculty  of  speech,  we  agree  with  Dugald  Stewart,  in  ex- 
plaining rather  by  ventriloquism  than  any  thing  else,  the 
surprising  account  which  is  given  by  the  German  philoso- 
pher, Leibnitz,  of  a  clog  who  spoke.  A  history  of  this  re- 
markable animal  was  given  by  Leibnitz  to  the  Abbe  de  St. 
Piere,  and  by  him  transmitted  to  the  Royal  Academy  of 
Paris.  The.  statement  is,  that  the  dog  pronounced  accu- 
rately the  entire  alphabet,  except  the  M,  N  and  X,  and 
spoke  very  accurately  about  thirty  words,  among   which 


Lect.  !.]  NATURE    OF    MAN.  41 

were  the  French  words  for  chocolate,  coffee  and  tea.    But 
the  account  concludes  with  stating  that  he  spoke  through 
echo;  that  is,  after  his    master  had    pronounced  the  word. 
We  believe  that  Leibnitz  and  others  were,  in  this  instance, 
ignorantly  credulous;  but  we  cannot  fully  concur  with  Pro- 
fessor Stewart  in  regarding  the  case  as  absurd  or  impossi- 
ble; for  though  the  dog's  tongue  is  certainly  less  adapted 
for  the  utterance  of  words  than  that  of  some  birds,  yet  it  is 
well   known  at  this  day,  and  attested    by  incontrovertible 
facts,  that  the  tongue  is  not  an  essential  organ  of  speech, 
but  that  the  larynx  frequently  performs  every  office  usually 
attributed  to  the  tongue.      Several  instances  are  recorded 
where  voice,  speech,  deglutition,  and  even  taste  have  been 
most  accurately  perfect,  although  the  tongue  has  been  whol- 
ly wanting;  and  in  other  cases,  the  tongue,  and  apparently 
the  larynx,  have  been  perfect,  and  yet  the  animal  was  dumb. 
Speech  in  man,  and  the  faculty  possessed   by  some  animals 
of  uttering  articulate  sounds,  do  not  essentially  depend  on 
the  formation  of  the  tongue,  and  nothing  can  be  more  ground- 
less than  the  vulgar  notion  of  some  people,  that  all  animals 
would  speak,  if  the  various  organs  in  them  were  adapted  to 
such  an  utterance.      This,  indeed,  was  the  opinion  of  Hel- 
vetius  and  his  disciples,  to  which  we  have  before  alluded. 
It  is  not  pretended  in  any  of  the  surprising  instances  of 
speaking   birds  and  other  animals,  that  they  were  endued 
with  a  degree  of  intelligence  beyond  their  species.      Mr. 
O'Kelley's  celebrated  parrot,  which  repeated  with  accuracy 
not  less  than  twenty  of  the  popular  songs  of  the  country, 
and  sung  them  to  appropriate  tunes,  was  not  remarkable 
f'jr  the  least  intelligence  in   other  respects,  or  even  in  the 
execution  of  this  surprising  modulation  of  its  voice,  as  it 
was   invariably  performed   according   to  a  necessary  law, 
from  which  it  could  not  in  any  degree  vary.     Nor  will  the 
bulllinch,  the  nightingale,  the  raven,  the  jay,  nor  our  de- 
lightful mocking-bird,  be  regarded  by  any  reflecting  mind, 

6 


42 


Or    THE    ORIGIN    AND  [Led.  I. 


as  possessed  of  more  reason,  intelligence  or  intellect,  than 
the  rest  of  their  silent,  or  less  musical  companions  of  the 

grove. 

It  appears  on  the  whole,  therefore,  that  speech  in  man 
is  the  highest  evidence  of  a  rational  soul;  and,  when  mi- 
micked  by  other  beings,  furnishes  no  evidence  whatever 
of  mind  or  soul  in  them.      Articulate  language  is  not  only 
peculiar   to   man,   but   stands    pre-eminent    as  the   faculty 
which  invokes  him  to  the  cultivation  of  the  numerous  other 
powers  of  his  nature,  that  adapt  him  to  society,  govern- 
ment and  laws.      Hence  is  it  that  men  in  all  ages,  and  in 
all  climates,  being  gifted  with  speech,  have  assembled   in 
communities,  for  society  and  government  of  some  kind  or 
other.      But  this,  as  we  have  already  shown,  is  not  a  mere 
gregarious   association;   for  the    rudiments  of  these  social 
sympathies,  (the  fountain  of  such  lively  pleasure  in  civilized 
life)  are  still   discernible   in  the  most  solitary  tribes  that 
gain  their  food  by  the  lonely  avocation  of  hunting.      Even 
among  them,  the  relations  of  husband  and  wife,  parent  and 
child,  arc  maintained,  if  with  less  delicacy,  often  with  more 
liveliness,  and  add  their  force  to  the  calls  of  appetite,  to 
urge  the  savage  from  his  indolent  repose  to  the  toils  of  the 
chase.     Neither  does  the  parent,  in  these  rude  associations, 
abandon  his  offspring  on  the  recurrence  of  new  progeny; 
nor  does  the  offspring  become  unmindful  of  its  parent,  when 
no  longer  dependent  on  it  for  nutriment  or  support.      The 
wife  and   husband  are  not  forgotten  with  every  recurring 
season,  but  add  to  that  tie  the  lasting  one  of  the  parent,  and 
of  the  mutual  friend;  and  these  relations,  which  thus  become 
so  much  more  durable  than  the  same  among  brutes,  are  co- 
loured, heightened  and  ennobled  by  the  simultaneous  ope- 
ration of  the  moral  feelings.      From  this  intimate  associa- 
tion of  men  under  all  circumstances,  spring  two  obvious 
conclusions;  first,  that  it  is  the  result  of  their  nature,  and 
essential  to  their  happiness,  since  men  arc  impelled,  in  the 


Lect.  I.]  NATURE    OF    MAN.  43 

main,  to  what  conduces  to  happiness;  and  secondly,  that  it 
is  necessary  that  they  should  cultivate  those  qualities  which 
perpetuate,  cement  and  embellish  this  association.     To  this 
foundation,  therefore,  may  be  referred  the  duties  of  bene- 
volence and  affection,  of  mildness,  of  charity,  of  compas- 
sion; of  all  those  natural  sentiments,  in  short,  which  have 
no  relation  to  positive  institutions,  and  which  are  found 
existing  through  the  earth,  independently  of  them.      Man 
then,  as  we  have  seen,  is  a  being  endowed  not  only  with  a 
heart,  but  an  intellect,  each  of  which  is  susceptible  of  the 
highest  improvement;  and  as  the  first  connects  him  with 
his  own  species,  and  attaches  him  to  it,  the  second  connects 
him  with  all  other  objects,  animate  and  inanimate,  of  the 
world  around  him;  nay,  of  the  universe.      To  observe  the 
external   appearances  of  these,  to   examine  their  peculiar 
properties  and   structures,  their  connexions   and   relations 
with  each  other,  is  an  instinctive  emotion,  and  an  exhaust- 
less  source  of  gratification.     This  is  observable  in  the  wan- 
dering  inclinations  of  uncivilized   tribes,  for  even  in  our 
least  refined   state,  the  soul   prompts  us  to  ramble   in  the 
fields,  and  to  revel  on  the  beauty  and  varieties  of  nature. 
Hence  the  life  of  such  as  are  deemed  even  the  most  unob- 
servant, is  one  long  lesson:   we  gradually  accumulate  a  vast 
multitude  of  facts,  insensibly  arrange  them  in  their  classes, 
and  deduce  from  them  general  laws;  whilst  we  listen  with 
o-reat  interest  to  the  results  of  other  men's  observation,  and 
endeavour  to  make  them  our  own.      By  a  happy  wisdom, 
too,  of  nature,  the  knowledge  of  most  of  these  truths  adds, 
in  some  mode  and  degree,  to  our  physical  comfort:  we  are 
consequently   impelled  to  the  study  of  them   by  an  addi- 
tional motive.     The  curiosity  which  led  the  indolent  gazer 
on  the  Assyrian  plains,  to  look  upward  on  the  brightness 
of  the  heavens,  led  also  to  the  regulation  of  times  and  sea- 
sons.   The  pleasure  of  inhaling  the  perfume  of  a  flower,  led 
the  way  to  the  discovery  of  its  medicinal  or  nutritious  pro- 


44  OF    THE    ORIGIN  AND  [Lect.  I. 

pertics.  The  study  of  his  fellow  men  was  yet  more  natural 
to  the  untaught  rover  of  the  primeval  earth,  since  it  was 
not  less  interesting  to  his  curiosity,  than  necessary  to  his 
happiness  and  safety.  Every  where,  in  short,  man  is  seen 
progressive  in  knowledge,  and  reasoning  towards  useful  re- 
sults, from  the  phenomena  around  him. 

(5.)  Man  areli-  As  man  is  the  only  being  endowed  with 
gious  animal.  reason,  and  progressive  in  knowledge,  it 

necessarily  follows  that  he  is  the  only  religious  animal. 
Endued  with  social  affections,  and  with  intellectual  capaci- 
ties, both  of  which,  though  in  a  different  manner,  conduce 
to. his  internal  happiness;  and  directed  by  his  reason  to  se- 
lect from  the  abundance  around  him,  whatever  of  the  ma- 
terial creation  may  minister  to  his  external  wants  or  grati- 
fication, man  naturally  looks  around  him  for  the  great  au- 
thor of  his  bounty.  In  every  form  of  nafure  he  sees  the 
traces  of  design  and  of  skill;  but  he  sees  no  where  the 
being  capable  of  design  so  comprehensive,  or  of  skill  so 
exquisite.  None  of  his  own  capacities,  or  what  he  observes 
of  others',  lead  him  to  the  idea  that  man  can  he  the  author 
of  the  worid,  and  all  its  crowd  of  beauties:  his  thoughts 
are  therefore  naturally  elevated  to  the  conception  of  some 
superior  being,  whose  powers  are  adequate  to  the  contriv- 
ance and  execution  of  a  system  so  perfect,  so  vast,  and  so 
various;  in  other  words,  to  the  conception  of  a  God.  While 
his  miracles  impress  him  with  the  idea  of  his  ■  the 

daily  perception  of  his  bounty  impresses  him  with  the  feel- 
ing of  dependence  and  of  gratitude,  and  these  combined 
emotions  are  what  is  called  Religion. 

Whatever  complexion  or  stature  or  form,  an  African 
sun,  or  Siberian  frosts  may  have  impressed  on  man,  and 
whatever  varieties  we  meet  with  in  his  moral  constitution, 
we  find  that  religion,  of  some  kind,  is  ever  present.  Man, 
if  he  reflects  at  all,  is  compelled  to  recognize  the  exislcnce 
of  something  within  him,  different  from,  and  independent, 


kect.  I.]  NATURE    OF    MAN.  45 

in  a  great  degree,  of  the  external  or  corporeal  part.  II is 
experience  soon  teaches  him  that  this  active  and  ever  busy- 
intelligence  is  not  so  intimately  connected  with  the  body, 
but  that  it  may  possibly,  and  very  probably  will,  exist 
after  the  body's  dissolution.  This  belief  is  inseparably 
associated  with  the  sense  of  Deity,  the  perception  of  right 
and  wrong,  and  the  expectation  of  a  future  life,  and  of  re- 
tributive justice.  These  are  doctrines,  though  often  great- 
ly abused  by  the  most  disgusting  fantasies,  recognized,  in 
some  form  or  other,  in  all  ages,  and  by  all  people.  Whether 
the  universality  of  these  opinions  be  owing  to  their  perfect 
consonance  with  reason,  or  whether  they  be  the  doctrines 
of  a  primeval  revelation,  preserved  in  greater  or  less  purity 
by  all  people,  is  not  for  us  to  say.  Quicquid  est  Mud, 
says  Cicero,  quod  sapit,  quod  vult,  quod  viget,  cseleste 
et  divinum  est;  ob  eamque  rem  setemum  sit  necesse  est. 

In  conclusion  of  this  part  of  our  subject,  I  may  observe, 
that  though  it  be  painful  to  contemplate  the  false  views, 
and  shocking  superstitions  which  this  conception  has  gene- 
rated among  mankind,  it  is  equally  interesting  to  discover 
its  unbounded  prevalence,  its  general  happy  influence  on 
the  government  and  laws  of  most  nations,  and  that  it  inva- 
riably forms  a  part  of  the  intellectual  treasure  of  man,  in 
whatever  region  he  may  be  found.  Religion,  then,  being 
natural  to  man,  and  essential  to  his  happiness,  is  most  inti- 
mately connected  with  civil,  as  well  as  natural  jurispru- 
dence, it  being  the  object  of  all  law  to  prescribe  to  man 
such  rules  of  conduct,  as  may  be  best  suited  to  promote 
his  temporal,  as  far  as  that  may  not  interfere  with  his  eter- 
nal felicity. 

(6)  Man  a  free  The  next  striking  difference  between 
agent,  man, and  the  other  organized  beings  which 

surround  him,  is  the  freedom  of  his  Will.  Amidst  the 
multitude  and  variety  of  the  existences  by  which  he  is  en- 
compassed, he  wanders  not  with  a  blind  impulse  towards 


46  OP    THE    ORIGIN  AND  [Lect.  I. 

one  or  the  other.  Unlike  animals,  he  is  not  confined  to 
the  selection  of  certain  invariable  elements  of  enjoyment, 
nor  within  the  range  of  a  limited  choice,  but  he  is  at  liberty 
to  choose  between  the  opposite  extremes  of  evil  and  good. 
It  is  when  we  apply  this  liberty  of  thought  and  of  action 
to  morals,  that  we  find  the  most  singular  feature  in  man's 
nature,  and  the  foundation,  indeed,  of  all  moral  obligation. 
Were  man  invariably  directed  either  to  good  or  evil,  he 
might  fold  his  arms  with  the  sentiment  of  indolent  enjoy- 
ment, or  of  reckless  despair,  and  wholly  lose  the  activity 
of  sentiment  and  action  which  gives  such  charm  and  point 
to  his  existence. 

We  are  accustomed,  indeed,  to  speak  of  instincts,  of  in- 
clinations, and  of  passions,  as  strong  tendencies  towards 
particular  objects  or  pursuits;  and  we  hear,  in  common 
speech,  of  the  power  of  these  passions,  and  the  force  of 
these  instincts.  Hence  it  has  been  urged,  in  contradiction 
of  the  free  will  of  man,  that  these  passions  and  instincts 
have  the  power  of  controlling  us;  and  that  a  being  thus  im- 
pelled, cannot  be  said  to  be  the  lord  of  his  will.  Without 
dwelling  much  on  this  objection,  which,  if  true,  saps  the 
very  foundation  of  morals,  it  is  sufficient  briefly  to  explain 
what  is  meant  by  the  free  agency  of  man;  and  this  brief 
inquiry  will,  of  itself,  it  is  hoped,  suggest  the  reply,  and 
assure  us  that  we  are  not  less  free  agents,  and  morally  re- 
sponsible beings,  because  we  are  affected  by  instincts,  in- 
clinations and  passions.  Will  is  that  power  of  the  soul 
by  which  it  selects  the  objects  of  its  action,  its  passio?i, 
and  its  thoughts,  and  which  leads  it,  when  we  speak  of 
morals,  to  the  selection  of  what  ministers  to  its  happiness 
or  its  ill.  In  the  whole  scope  of  metaphysical  research, 
there  is  perhaps  no  subject  which  has  been  more  elabo- 
rately disputed  than  the  one  before  us.  It  is  far  from  my 
design  to  enter  into  an  examination  of  the  arguments  inge- 
niously suggested  in  opposition  to  man's  free  agency;  but  a* 


Lect.  I.]  NATURE    OF    MAN.  47 

the  point  is  too  important,  as  regards  the  obligation,  no  less 
of  human  than  of  divine  law,  to  be  passed  over  in  silence,  I 
shall  take  a  hasty  survey  of  the  controversy,  and  refer  the 
student  to  ample  sources  of  information,  which  he  may 
consult  at  leisure. 

Whatever  skill  and  subtlety  have  been  exhibited  in  dis- 
puting; this  doctrine,  every  rational  man  is  apt,  very  early 
in  the  inquiry,  to  appeal  to  his  own  consciousness  of  the 
freedom  of  his  will,  and  to  feel  great  reluctance  in  aban- 
doning that  firm  and  safe  foundation,  to  wander  on  the  sea 
of  argument.  It  is  true,  indeed,  that  several  learned  and 
profound  thinkers,  among  whom  is  Mr.  Collins,  have  de- 
nied to  man  this  very  consciousness  which  I  have  assumed. 
But  as  most  men  would  be  apt  to  pay  more  respect  to 
their  own  experience  than  to  Mr.  Collins'  reasoning;  and 
as  it  would  be  unsuited  to  the  object  of  such  elementary 
inquiries  as  ours,  to  enter  into  metaphysical  arguments 
on  such  a  point,  I  shall  continue  to  regard  it  as  a  fact, 
that  every  man  is  conscious  that  he  is  a  free  agent,  or, 
in  other  words,  that  he  knows  and  feels  that  'he  can 
act  if  he  will,  and  forbear  if  he  will/  which  is  Hobbes's 
own  definition  of  free  agency.  This  doctrine,  that  every 
man  is  conscious  of  a  liberty  to  choose  and  direct,  in  all 
conceivable  situations,  though  passions  may  sometimes  gain 
the  ascendency,  and  lead  him  astray  from  his  purpose,  is 
one  which  Collins  saw  the  necessity  of  endeavouring  to 
refute,  and  therefore  is  it,  that  he  boldly  assumed  the  re- 
verse position,  and  contended  that  the  consciousness  was, 
that  man  is  not  a  free  agent.  This  issue  of  fact,  however, 
cannot  be  settled,  and  perhaps  need  not  be,  if  we  adopt  the 
idea  of  the  celebrated  Kant,  that  every  one  who  conceives 
himself  to  be  a  free  agent,  is  rendered,  by  his  own  belief, 
a  moral  and  accountable  being,  although  he  be  in  fact  a  ne- 
cessary agent. 


48  OP   THE    ORIGIN  AND  [Lect.  I. 

It  is  now  proper  that  we  advert  to  the  distinction  exist- 
ing between  Will  and  Liberty,  words  too  frequently  con- 
founded, and  the  difference  between  which  is  certainly, 
very  nice.  Locke  defines  Will  to  be  that  faculty  of  the 
soul  by  which  it  begins  or  forbears,  continues  or  ends,  any 
action  of  the  mind  or  of  the  body,  merely  by  a  thought  or 
preference  of  the  mind;  it  consists  in  the  power  of  prefer- 
ring to  move,  or  not  to  move  the  body,  to  exert,  or  not  to 
exert  the  mind.  Liberty,  on  the  other  hand,  does  not  be- 
long to  the  will,  but  to  the  person  having  the  will;  he  has 
the  power  or  liherty  to  execute  the  will  or  not,  as  he 
pleases.  I  confess  this  appears  to  me  a  very  u n satisfactory- 
statement  of  the  distinction.  If  the  will  be  free,  as  I  ad- 
mit it  to  be,  and  this  consists  of  a  power  of  preferring  one 
thing  to  another,  this  preference,  when  made,  is  a  volition, 
or,  as  it  is  sometimes  called,  a  judgment,  pronounced  by 
the  will. — If  liberty,  then,  be  equally  free,  that  is,  if  we 
have  the  power  to  execute  the  volition  or  not,  as  wc 
please,  and  do  accordingly  execute  it,  or  decline  so  to  do, 
all  that  can  be  said  is,  that  when  we  have  executed  the  vo- 
lition, we  have  only  done  that  which  we  would  have  done 
had  there  been  no  liberty.  If  we  have  not  executed  that 
volition,  then  we  have  merely  formed  a  new  volition,  and 
executed  that.  I  cannot,  therefore,  see  the  least  necessity 
for  the  distinction  between  volition  and  liherty,  if  it  is  to 
be  considered  in  this  point  of  view.  If  this  be  the  only 
mode  in  which  we  are  to  regard  the  subject,  I  would  say 
that  the  will  is  free,  but  that  there  is  no  such  thing  as  liher- 
ty distinct  from  freewill,  because  we  have  no  power  to  re- 
fuse to  execute  the  will;  and  that  in  all  cases  where  liberty 
appears  to  have  been  exerted,  it  is  nothing  more  than  the 
formation  of  a  new  will,  or  rather  volition,  and  the  execu- 
tion of  that  second  volition.  The  will  is  a  faculty,  but 
when  it  is  exerted  by  volition,  that  very  volition  is  itself 
an  execution  of  the  will,  and  excludes  ail  libertw    I  cannot 


Lect.  I]  NATURE    OP    MAN.  49 

will  to  walk,  (having  the  physical  power  to  do  so)  unless  I 
do  walk. 

I  may,  indeed,  desire  to  walk,  and  have  no  physical 
power  to  do  so;  and  so  I  may  will  to  walk  at  a  future  pe- 
riod, having  the  present  ability  to  walk;  but  if  I  really  de- 
sire in  prsesenti  to  walk,  or  rather  will  to  walk,  having  the 
present  faculty,  I  inevitably  execute  the  act  of  walking. 
I  admit  that  volition,  or  the  mere  act  of  willing,  is  one 
thing,  and  the  physical  performance  another;  but  whether 
the  thing  willed  be  a  mental  or  a  physical  operation,  it  is 
performed  in  the  very  act  of  willing.  If  I  will  to  do  a  fu- 
ture act,  the  will  is  so  far  forth  executed,  and  when  the 
future  act  comes  to  be  performed,  it  is  the  physical  execu- 
tion either  of  the  continued  will,  or  of  a  new  one,  founded 
on  new  or  additional  motives.  It  appears,  therefore,  that 
freedom  of  the  ivill  expresses  overy  thing  that  is  intended, 
without  the  word  liberty;  and,  consequently,  that  there  is 
no  occasion  to  speak  of  will  and  liberty  as  distinct  faculties, 
one  being  a  general  desire  for  a  good,  the  other  a  faculty 
of  suspending  the  will,  until  we  are  better  satisfied  that 
the  thing  desired  is  really  for  our  good.  Both  of  these 
operations  are,  we  think,  emhraced  by  the  freedom  of 
will.  We  never  do  will  what  is  impossible,  though  we 
may  desire  it.  If  the  will  be  free,  it  is  equally  free  to 
act  after  it  has  willed;  freedom  of  will  includes  liberty  of 
action;  or,  in  other  words,  willing  cannot  be  distinguish- 
ed from  acting,  since  acting  is  necessarily  consequent 
upon  willing,  if  the  agent,  at  the  time,  possesses  the  phy- 
sical ability  to  act.  The  mind  never  does  will  an  impossi- 
bility ex  naturd;  but  it  may  well  will  what  is  possible  to 
be  done,  though  it  be  impossible  to  be  done  by  the  person 
who  wills,  merely  in  consequence  of  a  physical  impediment 
of  which  he  was  not  conscious.  The  moment  he  becomes 
fully  conscious  of  the  physical  defect,  he  may  desire,  but 
he  cannot  will  to  do  the  act. 
7 


30 


OF    THE    ORTGIN    AND  [Lect.  I 


The  mere  faculty,  then,  is  one  thing,  the  volition  is  ano- 
ther. But  when  will  and  liberty  are  attempted  to  be  dis- 
tinguished, we  should  only  contrast  the  mere  faculty  of 
will,  with  the  mere  faculty  of  liberty,  in  which  case,  all 
that  it  can  mean  is,  that  as  the  faculty  of  will  is  perfectly 
free,  it  has  the  liberty  or  power  of  calling  on  the  judgment 
to  assist  it  in  its  determinations.  But  even  in  this  sense, 
there  is  no  utility  in  the  word  liberty.  Jt  appears  to  us 
that  the  distinction  attempted  to  be  maintained,  arose  from 
confounding  the  will,  considered  as  a  faculty,  with  the 
judgment  summoned  to  its  aid  to  produce  a  volition.  If 
by  liberty  is  meant  the  power  of  acting  contrary  to  the 
will,  or  to  a  volition,  which  is  the  act  of  the  will,  no  such 
power,  we  think,  exists;  but  if  by  liberty  be  meant  the 
power  of  acting  contrary  to  the  dictates  of  the  judgment, 
it  certainly  does  exist.  Will,  then,  or  volition  is  one 
thing,  liberty  is  another,  having  nothing  to  do  with  the 
will,  but  much  to  do  with  the  judgment.  It  is  true  that 
liberty  can  be  predicated  only  of  a  being  endued  with  will; 
but  we  cannot  understand  Mr.  Dugald  Stewart,  when  he 
says  that  it  is  the  province  of  liberty  to  execute  the  will, 
and  that  it  relates  to  the  will  only  after  it  is  formed.  To 
say  that  liberty  executes  the  will,  appears  to  us  to  be  wholly 
without  meaning,  since  a  mere  faculty  cannot  be  executed. 
If,  on  the  other  hand,  it  means  that  it  is  the  province  of 
liberty  to  execute  the  acts  of  the  will,  thai  is,  its  voliti 
it  appears  to  us  equally  unmeaning,  as  the  volition  is  i 
a  thing  executed,  and  not  in  Jieri.  The  will,  as  1  have 
before  said,  is  a  mere  faculty;  a  volition  is  the  determina- 
tion or  decision  of  that  faculty.  The  volition,  then,  is  a 
completely  executed  act  of  the  will;  being  executed,  thi  re 
is  no  deviating  from  that  volition.  The  will  may  again 
act,  and  the  new  volition  may  reverse  the  effects  of  the  fust, 
but  it  cannot  recall  the  first.  So,  again,  we  should  ('istin- 
guish  between  judgment  and  volition;  liberty  will  enable 


Lect.  I.3  NATURE    OP    MAN.  51 

us  to  execute  our  judgments,  or  to  disregard  them;  but 
liberty  can  never  enable  us  to  disregard  our  volition,  for 
that  being  past,  is  irrevocable.  All,  then,  that  we  mean 
bv  objecting  to  the  use  of  the  word  liberty,  as  applied  to 
the  will  or  volition,  is  simply  to  express  our  opinion,  that 
the  doctrine  of  liberty  has  been  erroneously  applied  to  the 
will,  instead  of  the  judgment.  But  passing  over  this,  we 
will  speak  of  the  will,  and  of  liberty,  as  they  are  generally 
understood.  Malebranche  defines  will  to  be  the  impression, 
or  natural  motion,  which  carries  us  towards  good  indeter- 
minately, and  in  the  general,  and  says  that  liberty  consists 
in  the  power  which  the  mind  has  to  direct  this  general  im- 
pression towards  some  particular  object.  Now,  in  this 
account  of  the  matter,  the  learned  Father  appears  to  give 
freedom  to  liberty,  but  to  deny  it,  in  a  great  degree,  to  the 
loill.  Mr.  Locke  also,  without  intending  it,  seems  to 
make  the  acts  of  the  will  rather  necessary  than  free,  when 
he  says  that  the  will  is  always  determined  by  some,  and, 
for  the  most  part,  by  the  most  pressing  uneasiness,  or  de- 
sire of  happiness.  Others  have  held  the  same  doctrine; 
for,  say  they,  'it  is  not  in  the  power  of  the  will  not  to  de- 
sire to  be  happy.'  If  will  be  that  faculty  of  the  soul  by 
which  it  is  urged  of  itself,  in  virtue  of  an  instinctive  prin- 
ciple inherent  in  its  nature,  to  seek  for  what  is  agreeable 
to  it,  to  act  after  a  certain  manner,  and  to  perform,  or  to 
omit  an  action,  with  a  view  to  some  good;  and  if  liberty  be 
that  faculty  of  the  soul  by  which  it  regulates  its  actions  as 
it  pleases,  without  regard  even  to  the  dictates  of  judgment, 
and  suspends,  continues  or  modifies  its  thoughts  and  opera- 
tions, either  in  affirmance,  or  in  disregard  of  previous 
judgments;  it  follows  that  actions  are  divisible  into  volun- 
tary and  involuntary,  necessary  and  free.  Those  actions 
are  denominated  voluntary  and  involuntary,  which  concern 
the  will;  whilst  such  as  concern  liberty,  are  called  free  and. 
necessary.     All  free  actions  are,  of  course,  voluntary,  but 


52  OF    THE    ORIGIN    AND  [Lee -t.  1 

all  voluntary  actions  are  not  free.  Where  the  action,  though 
voluntary,  is  not  a  free  one,  it  is  manifest  that  the  action 
has  been  willed  or  performed  after  a  judgment  formed  by 
the  mind  upon  all  the  motives  for  and  against  the  act.  On 
the  other  hand,  where  the  action  is  both  voluntary  and  free, 
these  conflicting  motives  do  not  present  themselves;  there 
is  no  occasion  to  invoke  the  judgment,  but  the  act  of  will- 
ing is,  in  such  case,  nearly  instantaneous.  If,  for  example, 
we  are  awed  by  fear,  or  respect  for  authority,  and  induced 
thereby  to  commit  an  act  which  was  condemned  by  our 
conscience  or  judgment,  the  act  is  voluntary,  but  not  free. 
Our  will  has  prompted  the  action,  after  some  contest  be- 
tween the  conflicting  inducements;  but  our  liberty  of  choice, 
or  willing,  was  under  restraint.  We  have,  nevertheless, 
chosen  what  perhaps  our  judgment  pronounced  the  less  of 
two  evils;  we  have  avoided  the  present  evil,  and  taken 
chances  for  that  which  is  future.  At  the  very  first,  our 
conscience  or  judgment  assured  us,  that  the  required  act 
was  mulum  in  se,  or  malum  prohibitum;  but  we  have 
weighed  our  notions  of  the  several  penalties,  present  or 
future,  which  may  be  attached  to  the  commission  or  omis- 
sion of  the  act,  and  we  form  a  second  judgment,  erroneous 
perhaps,  and  do  the  act.  This  class  of  actions  has  received 
the  name  of  mixed  actions,  because  they  arc  partly  volun- 
tary, and  partly  necessary. 

The  arguments  in  favour  of  the  doctrine  of  necessity,  arc 
to  be  found  in  the  writings  of  nearly  every  metaphysical 
author.  The  champions  in  favour  of  necessity  have  been 
among  the  most  distinguished  philosophers  of  ancient  and 
modern  times.  Yet  as  to  the  immoral  tendency  of  the 
theory  of  necessity,  there  can  be  little  doubt,  though  Col- 
lins, Hume  and  others  have  vehemently  contended  that  it 
is  not  only  consistent  with  sound  and  practical  ethics,  but 
the  only  one  which  is  really  so.  Viewing  the  subject  as  a 
mere  matter  of  argument  or  demonstration,  we  ate 


Lect.  I.]  NATURE    OF    MAN.  53 

own  that  we  cannot  perceive  that  either  party  has  gained 
a  decided  victory.  But,  at  the  same  time,  the  advocates 
of  free  will  have,  as  we  before  stated,  two  reasons  for  its 
adoption  which  we  contend  do  not  belong  to  the  others. 
The  first  is,  says  Reid,  'a  natural  conviction  or  belief  that 
we  do  act  freely,  a  conviction  so  early,  and  so  universal, 
that  it  must  be  the  result  of  our  constitution,  and  the  work 
of  him  that  made  us.'  This,  I  contend,  is  the  common  sense 
of  all  nations,  and  of  all  individuals.  Every  human  being 
practises  upon  this  opinion;  we  all  feel  that  we  are  free 
agents;  we  believe  that  we  can  will  to  act,  or  to  be  still; 
to  walk,  sleep,  read  or  contemplate.  We  can  add  fuel  to 
the  flame  of  our  passions,  or  at  once  extinguish  it.  The 
most  poignant  grief  may  be  subdued  by  our  conscience  or 
reason,  and  all  the  powers  of  ineffable  wit  and  humour 
shall  not  excite  even  a  smile,  or  a  mental  emotion,  if  we  so 
will  it.  If  these  be  facts,  they  oppose  a  powerful  battery 
against  all  that  can  be  urged  by  the  ingenious  reasonings  of 
the  sceptical  metaphysician. 

The  second  ground  which  gives  superiority,  we  think, 
to  the  doctrine  of  free  agency,  independently  of  mere  ar- 
gument, is,  that  it  is  a  more  salutary  opinion  than  that  of 
necessity.      We  agree  with   Dr.    Reid,  that   'if  the  terms 

MORAL  OBLIGATION  and  ACCOUNTABLENESS,  PRAISE  and 
BLAME,  MERIT  and  DEMERIT,  JUSTICE  dlld  INJUSTICE,  RE- 
WARD and  punishment,  wisdom  and  folly,  virtue  and 
vice,  be  applied  to  the  system  of  necessity,  they  are  im- 
properly used,  or  should  have  new  meanings  given  to  them 
when  used  in  religion,  in  morals,  or  in  civil  government; 
for,  upon  that  system,  there  can  be  no  such  things  as  they 
have  always  been  used  to  signify.' 

On  the  other  hand,  mere  free  agency  does  not  in  se 
create  moral  obligation  or  accountableness;  we  must  add 
to  this  an  actual  sense  or  knowledge  of  the  distinction 
between  right  and  wrong.      Our  first   parents,  before  their 


54  OF    THE    ORIGIN    AND  [Lect.  I. 

violation  of  the  only  law  that  was  given  them,  were  as 
much  free  agents  as  afterwards;  but  consequent  upon  their 
transgression,  was  an  unlimited  knowledge  of  the  differ- 
ence between  virtue  and  vice,  right  and  wrong;  and  from 
that  moment  only,  we  presume,  were  their  actions  imputa- 
ble. So,  mere  animals,  to  whom  this  single  law  was  never 
given,  are  free  agents,  but,  having  no  knowledge  whatever 
of  the  distinction  between  right  and  wrong,  their  acts  are 
not  imputable  to  them.  So  that  whether  animals  are  en- 
dued with  a  limited  reason  and  intelligence,  or  not,  they 
eannot  be  supposed  to  be  responsible  merely  because  they 
are  free  agents.  Man,  therefore,  is  not  a  moral  and  re- 
sponsible being,  subjected  to  divine  and  human  laws,  be- 
cause he  is  a  free  agent,  but  because  he  likewise  knows  the 
difference  between  vice  and  virtue,  between  actions  which 
are  mala  in  se,  and  those  which  are  merely  mala  p?'ohi- 
bita. 

We  shall  close  our  brief  and  desultory  remarks  on  free 
will  and  necessity,  with  some  notice  of  the  singular  doc- 
trines of  the  German  philosopher  Leibnitz,  who  denies,  not 
only  the  possibility  of  mans'  free  agency,  but  would  bind 
Deity  himself  with  the  same  eternal  chain.  For  this  pur- 
pose he  has  invoked,  in  a  wordy  jargon,  what  he  calls,  first, 
the  'principle  of  the  sufficient  reason;'  secondly, 
the  'law  of  continuity;'  and  thirdly,  the  doctrine  of 
'pre-established  harmony,'  A  brief  account  of  each  of 
these  will  be  sufficient  for  our  purpose. 

By  the  principle  of  the  sufficient  reason,  Leibnitz  ap- 
pears to  mean  that  nothing  can  happen  without  a  reason 
why  it  should  be  so,  rather  than  the  contrary,  or,  in  other 
words,  that  every  thing  which  exists  has  its  reason  for 
thus  existing,  and  that  it  is  incapable  of  having  any  other 
reason.  This  simple  position  appears  both  plausible  and 
unobjectionable;   but  the  inferences  deduced  by  him   from 


hect.  I.]  NATURE    OP    MAN.  55 

it,  and  his  extraordinary  application  of  the  doctrine,  form 
the  subject  of  complaint. 

Under  the  auspices  of  the  doctrine  of  a  sufficient  reason, 
he  argues  that  it  was  not  in  the  power  even  of  Deity  to 
create  or  fashion  two  things  exaetly  alike.  This  he  infers, 
after  stating  that  the  mind  is  guided  in  its  volition  by  the 
most  apparent  good;  so  that  it  would  be  impossible  to 
make  any  choice  between  things  entirely  alike,  nor  would 
it  be  possible  that  things  of  this  like  kind,  which  he  calls 
'indiscernibles,'  could  ever  have  been  created.  Under  the 
same  auspices,  he  of  course  infers  the  necessity  of  man's 
actions,  because  no  action  can  take  place  without  a  motive, 
and  no  motive  will  produce  an  effect,  unless  it  be  a  suffi- 
cient motive  or  reason.  From  the  same  source  he  derives 
his  demonstration  of  the  existence  of  a  God;  also  his  argu- 
ment against  a  vacuum,  which  he  rejects  merely  because 
the  parts  of  such  vacuum  must  be  alike!  Under  the  gui- 
dance of  this  convenient  magical  phrase,  he  also  discarded 
the  atomic  philosophy,  and  introduced  his  monads  in  the 
stead  of  Des  Cartes'  particles  of  matter,  which,  as  they 
must  be  like  each  other,  did  not  agree  with  the  distinguish- 
ing features  of  his  philosophy.  He  therefore  made  his 
monads  consist  of  principles,  endued  with  appetites,  and 
perceptions  of  an  indefinite  variety! 

It  is  manifest,  from  what  has  been  said  of  this  much 
vaunted  sufficient  reason,  that  it  is  the  offspring  of  a  mind 
given  to  such  continued  and  deep  reflection,  as  to  have  be- 
come morbidly  imaginative.  If  there  is  much  plausibility 
in  some  of  his  views  on  the  doctrine  of  sufficient  reason, 
its  general  error  and  futility  are  so  manifest  as  to  require 
no  comment  from  us.  Such  whimseys  of  a  learned  mind, 
and  ardent  imagination,  are  entertaining  enough,  when 
we  desire  to  be  entertained;  but  when  they  assume  the 
names  of  grave  science,  and  of  sound  philosophy;  when 
they  are  taught  to  us   by   a  reformer   who   would   raise 


56  OF    THE    ORIGIN    AND  [Lect.  I. 

himself  upon  the  ruins  of  a  popular,  though  equally  ab- 
surd philosophy;  they  become  rather  disgusting  than 
otherwise,  and  bid  us  unite  with  Bolingbroke  in  the  in- 
quiry, 'Is  it  worth  while  to  gain  the  name  of  a  philoso- 
pher, at  the  expense  of  amusing  mankind  with  such  hypo- 
thetical extravagances?' 

The  second  principle  which  Leibnitz  summoned  in  aid 
of  his  views  of  necessity,  is  what  he  called  the  law  of 
continuity.  Availing  himself  of  the  too  popular  tentlen- 
cv  of  men  to  he  carried  away  by  terse  phrases,  and  uncur- 
rent  words,  he  on  this,  as  well  as  the  former  occasion, 
throws  around  his  principle  a  little  vagueness  and  mystery, 
by  the  use  of  formal  and  unknown  expressions.  Had  the 
principle  of  'the  sufficient  reason,'  and  the  law  of  'continu- 
ity,' been  expressed  without  a  set  form  of  words,  and  in 
their  mere  naked  meaning,  it  is  quite  possible  they  never 
would  have  made  as  distinguished  a  figure  in  the  books,  or 
have  been  in  the  mouths  of  as  many,  as  we  find  them.  V>y 
the  law  of  continuity  Leibnitz  means,  that  there  is  a  fixed 
concatenation  subsisting  between  all  existences,  events 
and  truths:  that  every  thing,  physical  as  well  as  moral,  that 
exists,  ever  did  exist,  or  ever  shall  exist  or  happen,  is 
thus  connected.  From  this  supposed  law  of  continuity,  he 
and  his  disciples  deduce  a  variety  of  startling  positions  in 
morals,  phy sicks  and  metaphy sicks;  such  as,  that  there  is 
in  nature  a  scale  of  gradual  descent  from  Deity  to  the  sim- 
plest particle  of  unorganized  matter;  that  the  whole  of  this 
vast  scale  of  the  universe  admits  not  of  the  least  saltus 
nor  chasm;  that  perfectly  hard  bodies  cannot  exist  in  na- 
ture; that,  any  body,  in  changing  its  state  of  motion  or 
rest,  passes  through  all  the  intermediate  degrees  of  veloci- 
ty; that  the  soul  is  necessarily  an  ever  active  and  thinking 
principle;  that  the  vulgar  notion  of  death  is  impossible  to 
be  true;  that  all  of  nature's  operations  are  effected  by  infi- 
nitely small  degrees,  that  is,  according  to  the  law  of  an  tin- 


Led.  I.]  NATURE    OP    MAN.  37 

broken  continuity,  which  never  violates  the  maxim  assumed 
by  them,  viz.  'quod  natura  non  operatur  per  saltum.'  All 
these  deductions  from  the  law  of  continuity  have  been 
commented  upon,  and  satisfactorily  refuted  by  several  able 
writers.  We  need  not  advert  to  the  arguments  on  either 
side,  as  it  would  lead  us  beyond  our  prescribed  duty;  but 
we  will  briefly  remark  that  Maupertuis,  in  a  very  few 
words,  has  shown  the  fallacy  of  the  very  principle  and 
maxim  on  which  the  entire  doctrine  is  based.  If  actual, 
though  i nfinitesimal changes  be  admitted,  then  is  the  law  of 
continuity  a  mere  chimera;  for,  as  Maupertuis  in  substance 
remarks,  the  law  of  continuity  is  no  more  violated  by  a 
sudden,  and  tremendously  visible  destruction  of  the  uni- 
verse, or  any  part  thereof,  than  by  changes  ever  so  imper- 
ceptible to  our  senses,  but  actual  and  finite.  It  is  ma- 
nifest that  this  doctrine  of  continuity  makes  God's  sub- 
lime universe  a  vast  machine,  regulated  in  all  its  motions, 
by  its  own  intrinsick  principles,  and,  at  this  time,  wholly 
independent  of  Deity;  as  tnuch  so  as  the  movements  of  a 
clock  are  certain,  and  wholly  independent  of  the  will  of  the 
mechanist.  It  also  regards  the  actions  of  all  organized  be- 
ings, as  the  mere  results  of  fixed  mechanical  evolutions. 
Vice,  in  this  system,  is  necessary  and  pre-ordained;  and  so, 
likewise,  is  virtue:  man  is  a  mere  automaton,  no  less  in 
the  operations  of  his  mind,  than  of  his  body:  merit  and 
demerit,  gratitude  and  ingratitude,  honesty  and  dishonesty, 
love  and  hatred,  and,  in  short,  all  that  we  admire,  and  all 
that  we  abhor,  are  equally  the  result  of  the  unerring  laws 
of  continuity.  So  odious  a  doctrine  cannot  be  true.  The 
irresistible  dictates  of  conscience  and  reason,  (when  not  per- 
verted by  vice,  or  an  overweening  love  of  theory,  and  the 
being  wise  beyond  what  is  written,)  assure  us  that  neither 
the  principle  of  the  sufficient  reason,  nor  the  laio  of  con- 
tinuity, ever  had  existence  except  in  the  mind  of  its  eru- 
dite, but  misguided  author. 
8 


58  OF    THE    ORTGIN    AND  [Lect.  I. 

Thirdly.  The  doctrine  of  Pre-established  Harmony  in 
a  figment  from  the  same  source;  and  its  design,  and  general 
nature,  are  the  same  with  those  of  the  other  two,  viz:  to  sus- 
tain the  theory  of  necessity,  by  establishing  a  fixed  and  me- 
chanical universe,  in  which  every  mental  and  physical  opera- 
tion is  the  result  of  the  certain  action  of  the  great  machine. 
This  doctrine  of  pre-established  harmony  was  advanced  by 
its  learned  author,  (in  furtherance  of  the  doctrine  of  ne- 
cessity,) for  two  main  purposes;  first,  to  account  for 
the  union  or  communication  between  the  soul  and  body; 
and  secondly,  to  account  for  the  apparent  communication 
between  the  kingdoms  of  nature  and  grace,  by  establishing 
this  harmony  between  them,  so  as  to  make  a  correspondence 
between  physical  evil,  and  moral  evil. 

The  opinion  of  philosophers,  both  ancient  and  modern, 
in  regard  to  the  first,  was  that  the  soul  and  body  do  actu- 
ally operate  reciprocally  on  each  other.  Des  Cartes  was 
the  first  who  denied  this  real  union,  and  contended  that 
the  connexion  is  only  apparent:  in  which  God  is  ever  the 
mediator.  Leibnitz,  in  no  degree  approving  of  the  former, 
and  only  partially,  if  at  all,  of  the  latter,  advanced  a  third 
hypothesis,  in  his  celebrated  doctrine  of  pre-established 
harmony,  in  which  he  states  that  a  soul  is  an  entity  hav- 
ing a  fixed  series  of  thoughts,  desires,  emotions,  volitions, 
&c.  and  that  a  body  is  nothing  else  than  a  machine  having 
also  a  prescribed  number,  or  fixed  series  of  motions  &.c. 
admirably  and  perfectly  correspondent  to  the  chain  of 
thoughts,  desires,  emotions  &c.  of  the  soul.  Hence,  ac- 
cording to  this  theory,  the  soul  and  body  do  not  corres- 
pond because  they  are  united,  but  they  are  united  because 
they  correspond,  by  reason  of  a  harmony  existing  antece- 
dently to,  and  wholly  independently  of  their  union.  Thus 
it  is  that,  if  there  be  an  invariable  correspondence  between 
the  whole  series  of  a  soul,  and  the  whole  series  of  a  body, 
a  man  is  thus  produced;  or,  rather,  God  has  brought  them 


Lect.  I.]  NATURE    OP    MAN.  59 

together,  not  by  actual  contact  or  union,  not  by  their  oper- 
ating at  all  on  each  other,  hut  that  the  perfect  harmony  of 
the   previous   relation  of  the  two,  has  thus  associated   to- 
gether all  the  souls  and  bodies  which  have  ever  existed, 
and  will  continue  thus  to  associate  all  that  ever  will  exist. 
Under  the  auspices  of  this  theory,  we  presume  that  Leib- 
nitz   would    have    accounted    for    the    various    degrees    of 
intellect    or  intelligence   in   the  world,  from  a   Newton  or 
Locke,  to  the  poor  idiot  to  whom  nature  hath  denied  near- 
ly all  harmony  between  his  soul  and  body!     He  supposes 
that  it  is  a  mere  illusion  that  the  body  affects  the  mind,  or 
the   mind   the   body;   that   the  relation   is  only  ostensible; 
that  the  harmony  which  perpetually  existed,  is  only  mani- 
fested to  man,  when   the  soul  and   body  are  associated   by 
being  called   into  existence.      The   harmony  is  so   perfect, 
that  the   body  moves  at  the  very  instant  the  mind   wills, 
but    still    without    the   least    relation  of  cause    and    effect. 
This  theory   has   been   beautifully   illustrated   by  Leibnitz 
himself,  by  Dugald  Stewart,  Mr.  Jaquelot  and  others.     The 
pre-established  relation  has   been  compared  to  two  clocks, 
so  contrived,   though    wholly  independent   of  each   odier, 
that  when  one  points  the  hour,  the  other  shall  strike  it,  at 
the  very  punctum  temporis.     It  has  been  still  more  forci- 
bly   illustrated     by   the    example    furnished    by   Jaquelot, 
which  is  recorded   by  Leibnitz,  and   is  thus  stated    by  Du- 
gald Stewart.      'Suppose  an  intelligent  and  powerful  being, 
who   knows,  beforehand,  every  thing   that   I  should   order 
my  footman  to  do  to-morrow,  should   make  a  machine  per- 
fectly to  resemble  my  footman,  and  exactly  to  perform  all 
day,  whatever  I  directed.      Would  not  my  will,  in  issuing 
ail   the  details  of  my  orders,  remain,  in    every  respect,  in 
the  same  circumstances  as  before;   and  would   not  the  ma- 
chine footman,  in   performing  the  different   movements, 
have  the  appearance   of  acting   only  in  obedience   to  my 
command?'     Both  these  examples,  there  can  be  no  doubt, 


60  OF    THE    ORIGIN    AND  [Isd.  I 

not  only  clearly  illustrate  the  theory,  hut  render  it  suffi- 
ciently plausible  for  the  mind  to  assent  to  its  possibil- 
ity. But  were  all  possible  theories,  even  in  any  degree, 
countenanced,  we  should  have  many  Universe-makers, 
whose  works,  however,  when  they  came  to  be  a  little 
more  closely  inspected,  would'  be  found  to  be  but  miser- 
able and  bungling  attempts.  The  absurdity  of  this  the- 
ory, however,  was  too  glaring  to  deceive  even  the  zea- 
lous infidel,  and  has  never  been  regarded  as  more  than  an 
amusing  philosophical  bauble,  ill  adapted  to  its  momentous 
object.  The  brief  notice  of  it  by  Lord  Bolingbroke,  is  only 
to  expose  its  folly.  We  give  it  in  his  own  words. 
'Bounce  felt  pain  when  he  was  kicked,  if  Bounce  was  ever 
kicked:  and  so  he  would  have  felt  it,  if  he  had  had  DO  body 
at  all,  at  that  moment.  A  fair  day  invited  you  to  walk 
in  your  garden,  Bounce  followed  after  you,  and  so  you 
both  would  have  done,  if  you  had  had  no  souls  at  all.'  He 
then  aJds,  'This  hypothesis  gives  me  no  honor,  but  every 
time  it  comes  into  my  thoughts,  I  laugh  as  if  I  were  at  a 
puppet,  show.' 

Notwithstanding  these  three  much  spoken  of  theories  are 
wholly  mechanical,  Leibnitz  disclaims  being  a  materialist. 
Necessity  and  materialism  usually  go  together,  but  are 
not  consequent  upon  each  other.  The  free  agency  of  man, 
and  his  accountability,  are  doctrines  too  important,  we  trust, 
to  be  resigned  by  any  one,  for  such  absurd  creations  of  the 
brain  as  those  of  pre-established  harmony,  the  law  of  con- 
tinuity, and  the  principle  of  the  sufficient  reason.  A  the- 
orist who  would  represent  an  eternal  geometrician  as  inces- 
santly occupied  in  the  solution  of  tiie  problem,  'The  state 
of  one  monad  being  given,  it  is  required  to  determine  the 
past,  present  and  future  state  of  the  whole  universe,' 
must  excite  our  admiration  at  his  fancy,  but  ought  not  long 
to  perplex  us  on  a  point  so  vital  to  morals  and  religion,  as 
that,  of  man's   free  will.      In  concluding  our  remarks  on 


Lect   I.]  NATURE    OF    MAN.  61 

these  opinions  of  Leibnitz,  we  have  occasion  again  to  refer 
to  Bolingbroke,  whose  mind,  by  the  by,  is  much  preferable 
to  his  morals,  and  who  justly  remarks  of  erroneous  theories 
generally,  that  'The  authority  may  be  great,  but  the  great- 
er it  is,  the  more  strongly  do  these  examples  of  error  show, 
how  little  the  greatest,  how  absurd  the  wisest,  how  igno- 
rant the  most  learned  of  men  become,  when  they  presume 
to  push  beyond  the  bounds  that  God  hath  set  to  human  in- 
quiries.'* 

(7.)  Man's  actions       Although   the  establishment   of  man's 
imputable,  or  not.        free  agency  does  not,  of  itself,  make  him 
morally  responsible  for  his  actions;  yet,  did  we  deny  him 
liberty  of  thought  and  action,  we  should  not  know  on  what 
basis  to  found  the  imputability  of  his  actions,  and,  indeed, 
should    be  compelled    to  admit  that  there  can    be  no  such 
thing  as  moral  obligation.     A   being,  the  subject  of  an  un- 
controllable fatality,  and  yet  responsible  for  his  actions,  is 
a  monstrous  and    incomprehensible  notion.      Such  a  being 
would    be  capable  of  neither  virtue   nor  vice,  and    conse- 
quently  entitled    neither  to  reward    nor   punishment;    all 
ideas  of  praise  or  blame  must  be  given  up,  and  man,  instead, 
of  remaining  the  paragon  of  animals,  would  become,  under 
the  influence  of  such  a  doctrine,  more  savage  than  the  wild 
beast,  more  miserable  than  any  other  creature  in  existence. 
To  suppose  the  soul  to  be  a  particular  subject  on  the  one 
hand,  and  passion  a  motive  power  on  the  other,  originally 
and    directly  communicated    by  heaven,   and   ever   acting 
with  a  force  proportioned  to  its  own  quantity;  is  reasoning 
indeed  from   the  known  laws  of  matter,  but  in  opposition, 
we  apprehend,  to  the  equally  known  laws  of  the  mind.     A 
power  to  choose,  and  a  dependence  for  felicity  on  the  choice; 
a  power  to  decide,  and  a  responsibility  for  the  decision;  a 
power  to  avoid  and   pursue,  and  two  goals  to  be  sought  or 

*5  Boling:  Works,  364. 


62  OF    THE    ORIGIN    AND  [Led.  I. 

avoided;  appeal'  to  be  correspondent  and  accordant  ideas, 
fall  in  with  the  natural  feeling  and  belief  of  the  human 
mind,  and  constitute  the  foundation  of  all  human  institu- 
tions, as  well  as  of  that  imputability  of  action  which  forms 
man's  relation  with  the  author  of  his  being. and  the  only  sanc- 
tion of  the  natural  law.  Take  away  this  principle,  and  you 
take  away  the  necessity  of  a  discerning  intelligence;  you 
destroy  the  responsibility  to  heaven,  the  difference  between 
the  loveliness  of  virtue,  and  the  odiousness  of  vice,  between 
honour  and  disgrace;  and  you  abstract  the  motive  to  that 
incessant  activity  by  which  we  are  constantly  urged  either 
to  obtain  the  esteem,  or  to  shun  the  contempt  of  our  fel- 
lows; in  short,  you  cast  into  utter  confusion  the  whole  sys- 
tem of  human  society. 

From  the  doctrine  of  the  imputability  of  our  thoughts 
and  actions,  the  following  important  obligation  seems  ne- 
cessarily to  result,  and  to  stand  pre-eminent  in  the  class  of 
our  duties;  viz.  to  cultivate  with  assiduity  all  the  functions 
of  the  mind,  and  to  preserve  in  health  and  vigour  all  the 
powers  of  the  body,  since  it  is  by  their  united  action  that 
man  becomes  useful  in  every  condition  of  life. 

Hence  is  it  that  the  compound  nature  of  man  renders  it 
particularly  important  that  the  jurisprudent,  whose  science 
is  based  on  sound  morals,  should  make  himself  well  ac- 
quainted with  man's  physical  and  mental  constitution. 
It  is  from  the  intimate  connexion  between  mind  and  bod}-, 
that  men  so  often  differ  in  their  judgment  on  the  same 
subject;  for  though  morals  be  ever  the  same,  education, 
both  physical  and  intellectual,  has  great  sway  in  rendering 
more  or  less  acute  our  moral  and  mental  perceptions. 
Whatever  theory  be  adopted  in  regard  to  the  connexion 
between  the  soul  and  body,  all  must  agree  in  the  fact,  that 
the  mind  is  capable  of  indicating  itself  only  through  the 
medium  of  the  numerous  organs  or  vehicles  of  the  body. 
If  they  be   perfectly  organized,  and  in  a  state  of  healthy 


Lect.  I.]  NATITRE    OF    MAN.  63 

action,  the  mind  will  be  advantageously  displayed,  and  will 
indicate    itself  as    a    sound    and    vigorous    understanding: 
whereas,  if  the  organization  of  the  body,  especially  of  the 
brain   and   nervous  system   generally,   be  not    perfect,  or, 
from    supervenient  causes,    be    thrown    into    disarray,  the 
mind  will  manifest  itself  either  with  feebleness,  or  with  ir- 
regularity.   Not  that  the  mind  itself  is  capable  of  injury  or 
of  disease;  for  this,  we  believe,  can  never  be  the  case;  but 
simply  that  its  outlets,  or  organs  of  communication,  have 
become  disordered,  or  were  originally  imperfect.     Hence, 
as  we  think,  a  man  of  genius,  or  of  vigorous  intellect,  dif- 
fers from  one  of  plain  intelligence,  only  in  the  greater  per- 
fection  of  bodily  organization.     Though  mind    be  altoge- 
ther different  from  body  or  matter,  (for  we  differ  toto  cash 
from  all  materialists,)  yet  we  cannot  but  regard  all  minds  as 
essentially  the  same.      God  may  have  given  to  one   man  a 
greater  talent  than  to  another;  but  he  has  created  the  differ- 
ence by  giving  him  the  ability  to  display  advantageously  his 
mind,  through  organs  more  perfectly  adapted  for  that   pur- 
pose, than  those  of  another.  If,  therefore,  one  man  be  supe- 
rior by  nature  to  another,  it  is  not  because  God  has  created 
one  mind  superior  to  another,  but  that  he  has  endued   that 
man  with  a  superior  organization;  one,  indeed,  which  may 
perhaps  for  ever  escape  the  scrutiny  of  the  phrenologist, 
which    eludes    the    anatomist    and    physician,    and  which 
may  often  be  found  equally  in  the  small  and  feeble  body,  as 
in  the  large  and  vigorous.      We  often  indeed  hear  of  men- 
tal, as  well  as  of  bodily  diseases.     Leibnitz  admitted  them 
both;  but  contended  that  the  soul  and  body,  not  being  uni- 
ted, are  wholly  incapable  of  diseasing  each  other.      Hence, 
according  to  Leibnitz,  if  the  body  be  diseased,  it  could  not 
in  any  degree  affect  the  pre-established  harmony  of  mental 
thoughts,  desires  &c,  and  so,  e  converso.     He,  however, 
gets  over  the  difficulty,  we  presume,  by  supposing  that  dis- 
ease .itself,  both  of  body  and  mind,  is  pre-established,  and  is 


64  OF    THE    ORIGIN    AND  [Lect.  I. 

only  a  part  of  the  necessary  evolutions  of  each.  We  have 
presumed  to  doubt  the  possibility  of  mental  disease,  and 
agree  with  Leibnitz  in  one  respect,  viz:  that  tlae  mind  can- 
not be  diseased  by  the  body;  but  we  cannot  agree  that  the 
body  may  not  be  thrown  into  disarray  by  the  mind.  When 
the  mind  appears  to  be  diseased  by  the  body,  it  is,  we  appre- 
hend, nothing  more  than  that  the  mind  has  been  compelled 
by  the  disorder  of  the  body  to  manifest  itself  through  dis- 
eased or  unfit  channels,  which  gives  to  us  the  appearance 
of  a  diseased  mind.  But,  porting  with  this  point,  it  is  cer- 
tain that  the  legislator,  the  judge,  and  the  jurist  should  ne- 
ver disregard  the  physical  character  of  nations,  or  even  of 
individuals.  They  should  be  acquainted  no  less  with  the 
philosophy  of  physicks,  tnan  that  of  morals.  The  map  of 
human  nature  should  be  minutely  studied;  and  all  its  ano- 
malies should  be  as  accurately  known  to  them,  as  are  its 
harmonies   and    regularities. 

The  doctrine  of  Temperaments,  which  distinguishes  men 
into  five  classes,  may  sometimes  lead  to  error;  but,  with  a  ju- 
dicious mind,  it  may  be  advantageously  used.  13y  tempera- 
ments we  mean  that  classification  of  mental  propensities 
which  has  been  adopted  in  almost  every  age  and  country, 
since  the  days  of  Hippocrates,  and  which  arranges  under  five 
divisions, all  the  striking  peculiarities  oridiosyncrasies which 
have  been  manifested  by  individuals.  These  are  now  said 
to  be  the  following,  viz:  bilious  or  choleric;  atrubiliury 
or  melancholic;  sanguineous  or  ardent;  phlegmatic  or 
dull;  and  nerruus  or  irritable.  It  is  obvious  that  all  these 
names  have  been  taken  from  those  of  certain  secretions  of 
the  human  body,  with  which  these  temperaments  are  sup- 
posed to  have  an  essential  connexion.  That  men  are  often 
found  of  these  various  dispositions,  and  that  individuals 
may  generally,  in  some  degree  at  least,  be  assigned  to  one 
or  the  other  of  these  classes,  there  can  be  little  doubt.  It 
would  be  foreign  to  the  course  I  have  prescribed  to  my- 


Lect.  I.]  NATURE    OF    MAN.  65 

self,  were  I  to  enter  into  an  explanation  of  this  doctrine, 
or  furnish  examples  by  which  it  might  be  strongly  illus- 
trated. Biography  and  history  are  full  of  them,  and  the 
works  of  the  physiologists  amply  set  them  forth,  with  all 
that  has  been  hitherto  known  upon  the  subject.  To  these 
we  must,  therefore,  refer  the  student.  A  neglect  of  this 
knowledge,  and  of  other  subjects  pertaining  to  man's  na- 
ture, has  often  led,  we  doubt  not,  to  injustice  in  the  making 
and  expounding  of  laws. 

(S.)    Society,    go-       From  what  has  been   stated  we  infer 
Ternment.     religion,  . 

and  knowledge  con-  that   man  without  society,   government, 

genial    to   man,    and   relipn0n  ari(J  knowledge,  would  be  a  very- 
essential  to  his  hap- 
piness, helpless  and   miserable   being;    and    per- 
haps less  capable  of  self-protection,  and  the  procurement  of 
physical  comfort,  than  any  other  animal.    It  is  chiefly  from 
association,  the  comparison  and  collision  of  opinion,  recip- 
rocal assistance,  and  division  of  labour,  that  man  has  mani- 
fested himself  to  be  'noble  in  reason,'  and  'infinite  in  facul- 
ties.'    We  have  seen  that  man  is  a  social  and  sympathetic 
being,  as  strongly  drawn   to  society,  as   to   the   pursuit  of 
mere  individual  gratification:  he  has  a  fund  of  sensibilities, 
and  a  set  of  passions,  which  cannot  be  poured  out,  except 
in  the  assembly  of  his  fellows.      He  is  also,  as  we   have 
shown,  a  rational   being,  endued  with  the  curiosity  to  ex- 
plore, and  the  capacity  to  understand;  and  surrounded,  on 
all  sides,  by  objects  adapted  to  excite  his  curiosity,  and  to 
delight  his  reason.      He  also  possesses  a  sense  of  the  beau- 
tiful and  deformed    in  morals,  which  at  once  makes  him  a 
judge  of  the  actions  of  others,  and  a  competitor  for  their 
praise;  whilst  his  conscience  enables  him  to  pass  sentence 
on  all  his  own  thoughts  and  actions.      United   to  all  these, 
and    controlling  all,  he   has  a  choice  and   will  which   are 
to  direct  him,  both  in  the  pursuit  of  material   good,  and  in 
the  avoidance  of  moral   evil :  and  it  is  evident  that  none 


gy  OF    THE    ORIGIN    AND  LLtcl-  '• 

of  these  various  objects  can  be  pursued,  in  a  degree  propor- 
tioned to  Ins  capacities  and  inclinations,  except  in  Society. 

But  these  social  affections,  also,  would  have  a  narrow 
range,  were  they  confined  within  the  hut  of  the  savage 
hunter,  or  even  the  small  horde  of  uncultivated  communi- 
ties. Man's  curiosity  for  knowledge  would  be  mightily 
restricted,  were  it  daily  interrupted  by  the  calls  of  physical 
necessity.  The  variety  of  talents  and  capacities  observable 
in  man,  would  he  absolutely  thrown  away,  were  they  con- 
fined to  the  same  kind  of  pursuits  by  the  similarity  of  im- 
mediate necessities.  It  is  curious  to  think  that  the  suhtlety 
of  o-enius  which  led  a'Locke  into  the  recesses  of  the  human 
mind,  might,  in  the  savage  state,  have  been  wasted  in  spe- 
culations on  the  game  he  pursued,  or  the  animals  which  he 
tended;  and  the  faculties  of  an  Archimedes  have  be* 
hausted  in  the  structure  of  a  bow.  It  is  impossible,  in 
short,  to  conceive  a  full  theatre  for  the  powers  of  man,  or 
subjects  sufficient  for  his  diversified  capacities,  excep  in 
the  situation  of  a  well  governed  community,  when  the 
pursuits  are  selected  with  reference  to  the  peculiar  endow- 
ment of  the  individual,  and  where  the  care  of  providing 
sustenance,  and  comfortable  habitations,  is  left  to  the  more 
common  minds,  while  the  better  intellects  are  left  to  gen- 
eralize, to  reason,  to  combine,  and  to  supply  their  own  na- 
tural wants,  by  ministering  to  what  have  been  called  the  ar- 
tificial wants  of  society,  but  which  are,  in  reality,  the  same 
natural  wants  and  pleasures,  elicited  by  a  different  situation, 
and  called  out  in  the  regular  progress  of  the  mind. 

(9.   What  is  meant       While  men  are  thus  compelled  to  soci- 

by  the  natural  equal-   ejy  an(|    jts  consequences,  by  the  eharac- 

ity   ol    man;   and    of 

the  nature  of  mora]  ter  of  their  moral  and    physical   nature, 

obligation.  they  bring  with  them   passions  and    pro- 

pensities which,  however  they  may  tend  towards  general 
good,  still  require  much  control.  Before  man  came  to  feel 
his  own  individual  insufficiency  to  minister  to  his  nujner- 


Lect.  I  ]  NATURE    OP    MAN.  67 

ous  wants,  he  stood  in  creation  free  and  independent  of 
every  other  heing.  Hence,  in  this  state  of  man,  that  is,  in 
the  state  in  which  he  may  be  supposed  to  be,  independent- 
ly of  all  society  and  government,  all  men  were  equal. 
Such  a  state  of  nature,  and  absolute  independence,  import 
the  same  thing.  In  this  supposed  condition,  they  h.re 
equal  rights  to  life,  to  food  and  shelter,  to  the  products  of 
their  labour  and  their  skill.  The  transition  of  man  from 
this  state  of  absolute  freedom,  to  the  state  of  society  and 
laws,  necessarily  implies  a  relinquishment  of  a  portion  of 
this  freedom. 

Whatever  riffhts  he  retains  after  he  becomes  a  member 
of  society,  are  denominated  his  natural  rights,  and  in  re- 
gard to  these,  all  men  still  continue  to  be  equal,  in  the  same 
degree  as  they  were  in  a  state  of  nature.  But  even  in  a 
state  of  nature,  the  inequality  of  mental  and  physical  en- 
dowments produced  a  correspondent  inequality  in  the  hap- 
piness, and  actual  condition  of  individuals.  They  laboured 
with  various  success,  and  the  powerful  in  body  and  mind 
must  have  made  their  own  condition  much  superior  to  that 
of  the  weak.  It  may  be  inquired  then,  why  should  this 
inequality  be  continued  after  the  establishment  of  society, 
and  why  should  government,  which  is  designed  for  the 
perpetuation  of  the  comfort  of  man,  so  often  involve  the 
perpetuation  of  the  evils,  and  resulting  inequalities  of  the 
primitive  state?  The  solution  of  this  question  is  by  no 
means  difficult.  The  natural  equality  of  man  is  in  reality 
the  same  in  society  as  in  a  state  of  nature,  in  regard  to  all 
those  rights  which  in  the  main  are  essential  to  his  happi- 
ness. He  has  relinquished  to  the  society  a  portion  of  his 
natural  liberty,  in  exchange  for  the  publick  protection,  and 
various  facilities  which  he  otherwise  would  not  have  pos- 
sessed. What  he  has  given  up,  is  only  for  his  own  happi- 
ness; and  though  the  system  of  society  is  often  a  system  of 
considerable   sacrifice,  yet,  on  the  whole,  it  results  in  an 


6S 


OP    THE    ORIGIN  AN»  [Lect.  I. 


increase  of  felicity.     Government  never  was,  nor  could 
have  been,  designed  to  supply  all  the  insufficiencies  of  in- 
dividual   character.      The    indolent,  ignorant  and   vicious 
would  then  be  the  sole  gainers   by  society;  for  no  system 
of  government  could   have  made  all   men  equally  zealous, 
industrious,  intelligent  and  virtuous:    these   are  therefore 
matters  which,  from  necessity,  must  be  permitted  to  remain 
in  their  original  state.     In  a  state  of  nature,  or  of  primary 
society,  these  moral,  physical  and  intellectual  excellencies 
would   have  been  productive  of  an  increase  of  happiness, 
and  would  have  occasioned  inequality  of  condition:  so,  in 
society,  these  virtues,  in  addition  to  their  own  good  results, 
are  attended  with  a  variety  of  collateral  advantages,  which 
flow  from  the  relation  in  which  their  possessors  stand   to 
the  society  at  large,  of  which  they  are  members.      But  this 
system  of  mutual  sacrifice  and  accommodation  in  society, 
becomes  intelligible  enough   when  we  observe  the  nature 
oi  self-government,  and  its  intention  and  effects.     Man,  as 
we  have  often  observed,  is  composed  of  an  animal,  and  an 
intellectual  nature.      As  the  enjoyment  of  the  latter  is  im- 
possible without  attention  to  the  calls  of  the  former,  so  the 
gratification  of  the   sensual   appetites,   in   the   measure   to 
which  they  would  prompt  us,  is  destructive  of  intellectual 
happiness,  and  eventually  of  the  powers  of  physical   plea- 
sure themselves.      Hence  a  temperate  man  restrains  his  ap- 
petites, and  finds  his  compensation  for  restraint  and   absti- 
nence, in  the  general  amount  of  heaith,  that  is,  the  longer 
duration  of  pleasure,  which  they  procure  him.     The  same 
thing    takes    place    in    human    society   and    government. 
Prompted    by  the  same  inclinations  towards  the  same  ob- 
jects, we  should  constantly  jostle,  did  we  not  bear  and  for- 
bear, yield  and  receive,  sacrifice  and  be  remunerated;  did 
we  not  adhere,  in  short,  to  some  general  rules,  at  some  ex- 
pense of  individual  and  special  gratification.     It  is  pleasant 
to  take  of  the  fruits  of  the  earth,  and  it  is  a  natural  right  so 


Lect.  I.]  NATURE    OP    MAN.  69 

to  do;   but  it  is  speedily  found  to  contribute   both  to  their 
abundance,  and  their  peaceable  enjoyment,  that  men  should 
have  the  exclusive  property  in  what  they  rear  and  culti- 
vate.     So,  also,  it  is  a  natural  right  of  man  to  do  what  he 
likes,  where  he  does  not  interfere  with  the  rights  of  others; 
but  he  speedily  finds  that  in  society  this  right  must  be  more 
certainly  and  speedily  defined   and    limited:    he  sees  that 
others  are  also  possessed  of  this  right;    hence   his  experi- 
ence, and   that  of  the  society  in   general,   teach   him  the 
necessity  of  restraining  its  exercise,  would  he  preserve  it 
inviolate.      Men   soon   discover  that  restraints  are   neces- 
sary, and  to  what  degree:  these  restraints  grow  into  general 
rules;    and  these  rules  are  what  we  call   the   principles  of 
natural    law.      What  we  denominate    utility,   is  therefore 
nothing  more  than  what  contributes  to  happiness,  by  a  more 
general  and   certain  operation;   and   it  is  consequently  evi- 
dent that  the  distinction  which  we  draw  in  common  speech, 
between  the  pleasant  and  the  useful,  may  lead  us  into  some 
misapprehensions.      There  can   be  but  one  great  end  and 
aim  of  human  actions,  and  that  is  happiness.      Could  the 
useful  and  the  agreeable  be  by  any  conceivable  process  dis- 
joined; were  we  told  we  were  to  abandon  our  own  felicity, 
for  the  sake  of  producing  some  effect  called    utility;   we 
might  very  justly  ask  to  know  by  what  principle  we  were 
called  on  to  make  the  sacrifice,  or  in  any  degree  to  abridge 
our  liberty.      In   this,  however,  providence   is  consistent 
and  kind:  we  often  sacrifice,  indeed,  a  temporary  or  partial 
good;  but  it  is  for  one  more  durable  and   general.     We 
stifle  our  particular  aims;  but  we  thus  subserve  the  ends  of 
society,  and  thus  eventually  our  own.     We  sometimes  go 
in  opposition  to  our  private  reason;  but  it  is  in  compliance 
with  the  general  reason,  as  it  appears  in  the  implied  rules, 
or  the  positive  laws  of  society. 

It  is  usual  to  say  that  all   men  are  equal,  or  in  a  state  of 
natural  equality:  this  has  two  significations;  first,  that  na- 


70  OF    THE    ORIGIN   AND  [Lect.  I. 

ture  has  given  to  all  men  the  same  rights,  and,  as  far  as  she 
has  endowed  them  with  the  capacity  of  exercising  those 
rights,  they  are  more  or  less  valuable  to  their  possessors. 
Secondly,  that  all  men  remain  in  society  in  a  state  of  equal- 
ity, so  far  as  the  ends  of  government  do  not  abridge  their 
rights,  or  so  far  as  the  positive  institutions  of  society  have 
not,  on  the  principle  of  utility,  made  special  exceptions. 
From  the  foregoing  considerations  we  perceive  the  founda- 
tion and  nature  of  moral  obligation,  and  the  principle  also 
on  which  Yaws  are  binding,  naturally  and  civilly.  We  have 
already  intimated  the  just  conception  of  a  law,  viz.  a  rule 
adapted  to  promote  the  general  good  constituted  by  gene- 
ral consent,  and  sanctioned  by  implying  in  its  violation, 
some  injury  to  that  publick  good  of  which  our  own  forms 
a  part.  The  terms  mos,  mores,  express  custom,  manners 
and  morals  are  thus,  in  truth,  such  customs,  manners  and 
rules  as  have  been  found  productive  of  the  happiness  and 
good  order  of  society.  To  sin  against  morality,  is  to  do 
some  act  inconsistent  with  these  established  habitudes  of 
thought  and  action:  to  violate  the  law  of  nature  is  another 
mode  of  expressing  the  same  thought:  to  be  under  a  moral 
obligation  to  obey  the  law  of  nature,  is  to  be  under  a  moral 
necessity  of  consulting  our  happiness  by  those  modes  which 
right  reason,  conscience,  and  just  experience  have  found 
best  for  that  purpose. 

It  is  thus  eminently  true,  in   a   philosophical   point  of 

riew,  that 

•Virtue  alone  is  happiness  below.' 

And  it  is  found,  over  and  above  all,  that  the  tempers,  the 
restraints,  the  pursuits,  and  the  tastes  which  are  encouraged 
or  prohibited,  as  auspicious  or  hostile  to  society,  exert  cor- 
responding influences  on  individuals.  It  is  the  beauty  of 
the  moral  system,  that  the  end  proposed  by  it,  is  that  felici- 
ty which  we  pursue  with  so  much  ardour;  when  we  violate 
its  injunctions,  we  only  mistake  the  means  of  pleasure, 


Lect.  I.]  NATURE    OP    MAN.  71 

which  nature  hath  determined  with  an  unerring  exactness. 
It  follows,  too.  as  the  consequence  of  these  principles,  that 
we  are  under  the  same  obligation  to  ohey  the  positive  law 
of  the  land,  as  that  system  which  is  derived  from  the  cus- 
tom and  implied  consent  of  mankind,  and  the  dictates  of 
right  reason,  and  of  conscience. 

I  shall  have  occasion,  hereafter,  to  show  you  by  what 
right  the  legislative  power  enacts  laws,  whether  that  legis- 
lative power  reside  in  a  single  individual,  or  in  a  select 
number.  I  will  only  remark,  by  the  way,  that  no  imme- 
morial usage,  no  hereditary,  or  other  power  of  governors, 
nor  any  conceivable  force,  could  lay  us  under  an  obligation 
to  obey  any  legislative  will,  on  any  other  principle  than 
general  utility;  in  other  words,  the  happiness  of  those  who 
are  to  be  affected  by  its  regulations.  The  happiness  of  na- 
tions is  the  only  just  end  of  government;  and  when  we  re- 
member how  intimately  government  is  allied  with  arts,  and 
with  virtue,  we  shall  see  it  is  not  only  the  right,  but  the 
duty  of  nations,  to  resist  bad  rulers,  and  put  better  in  their 
stead;  a  solemn  right  and  duty,  whose  exercise  is  attended 
with  too  momentous  consequences  ever  to  be  wielded  rash- 
ly, or  without  great  deliberation  as  to  all  its  remote,  as 
well  as  direct  results. 

I  have  said  nothing  of  the  inherent  fitness  and  beauty  of 
virtue,  and  the  necessity  which  some  philosophers  have 
contended  for,  of  cultivating  it  for  its  own  sake;  a  sublime, 
and  perhaps  a  just  notion,  which  I  shall  have  occasion 
hereafter  to  touch  on.  The  foundation  on  which  I  have 
endeavoured  to  raise  the  structure  of  moral  obligation,  is 
that  of  Happiness,  or  (its  other  name)  Utility. 

In  the  course  of  the  present  lecture  I  have  several  times 
alluded  to  the  State  of  Nature:  in  the  ensuing  lecture  I 
shall  eudeavour  to  explain  what  is  really  meant  by  that, 
phrase. 


LECTURE    II. 


OP  MAN  IN  A  STATE  OF  NATURE. 


(l.)  Why  the  state  There  is  no  phrase  of  more  frequent 
of  nature  is  treated  occurrence  among  writers  on  natural  law, 
than  that  of  'the  state  of  nature. '  It  ap- 
pears to  be  variously  understood  by  different  authors,  and 
has  consequently  given  rise  to  moral  and  political  opinions 
of  various,  and  sometimes  opposite  character.  We  hear  of 
rights  which  belong  to  man  in  that  state;  of  the  'state  of 
nature'  as  distinguished  from  a  'state  of  society.'  We  hear 
of  the  former  as  a  primitive  state  of  man,  which  once  ac- 
tually existed,  and  from  which  our  species  gradually  emerg- 
ed, forming,  in  the  first  instance,  primary,  and  afterwards, 
civil  or  political  societies.  We  again  hear  of  this  state  as 
a  supposed  or  fictitious  one,  imagined  by  philosophers 
merely  in  order  to  illustrate  their  doctrines,  which  distin- 
guish actions  mala  in  se,  from  such  as  are  only  mala  pro- 
hibita;  or  certain  rights  which  are  called  natural,  from 
those  which  are  denominated  adventitious;  or  finally,  for 
the  purpose  of  drawing  a  broad  and  visible  line  of  distinc- 
tion between  those  obligations  which  are  due  from  man  to 
man,  independently  of  all  positive  institutions  and  enact- 
ments, and  those  which  flow  from  the  laws  or  compacts  of 
society. 

It  is  therefore  important  that  we  should  understand  the 
true  meaning  of  this  phrase,  in  order  to  know  with  cer- 


Lect.  II.]  OP  MAN  IN  A  STATE  OF  NATURE.  73 

tainty,  what  are  natural  rights  and  obligations;  and  that  we 
may  he  ahle  to  correct  some  misapprehensions  which  are 
caused  by  the  use  of  this  term  in  various  or  indefinite 
senses. 

(2.)     its    various       The  student  will  find,  very  early  in  his 
meanings.  investigation,  that  there  is  (as  we  have 

stated)  some  latitude  or  uncertainty  in  the  meaning  and  ap- 
plication of  the  expression,  'state  of  nature.'  He  will  na- 
turally inquire,  where  does  this  state  exist?  When  did  it 
exist?  Does  it  exist  any  where  at  this  time?  Is  it  when 
man  is  solitary,  and  wholly  unallied?  Is  it  when  he  has 
formed  the  most  natural  and  necessary  lie,  that  of  marriage? 
Or  is  it  when  he  hunts  in  company,  or  when  he  tills  the 
earth  in  communities  of  small  size,  and  without  a  common 
governor?  To  all  these  modifications  of  man's  existence  has 
this  phrase  been  applied  by  different  authors;  with  exclu- 
sive propriety  to  none,  and,  in  a  certain  sense,  with  pro- 
priety to  all;  since  in  all  these  situations  man,  according 
to  circumstances,  finds  his  natural  place. 

But  the  idea  attached  by  the  soundest  writers  on  natural 
law,  to  the  phrase,  'state  of  nature,'  is  expressed  by  none 
of  these  conditions  of  man.  It  is  either  that  state  in  which 
man  actually  existed  before  he  entered  into  civil  or  politi- 
cal association;  or,  as  I  shall  have  occasion  to  show  here- 
after, a  mere  ens  rationis,  a  state  which  never  had  a  real 
existence,  and  which  is  founded  by  philosophers  on  the 
doctrine  of  possible  relations,  for  the  purpose  of  establish- 
ing certain  important  moral  truths  relative  to  the  rights  and 
©bligations  of  man.  We  shall  endeavour  to  illustrate  this, 
after  we  have  offered  to  you  some  of  the  various  opinions 
of  eminent  writers  as  to  the  original  moral  and  physical 
condition  of  mankind,  and  the  circumstances,  sentiments 
and  motives  which  impelled  them  to  society. 

If  we  adopted  the  notions  of  some  of  the  poets,  we  should 
believe  that  men  were  at  first  the  mutum  et  turpe  pecus 
10 


74  ■  OF  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II 

they  are  described  to  be.  by  Horace;  animals  scarcely  dis- 
tinguished from  the  brutes;  roaming  the  forest  speechless 
and  companionless;  unskilled  in  the  most  ordinary  conve- 
niences of  life;  and  advancing  towards  even  the  most  faint 
civilization,  under  the  conduct  of  chance,  or  the  slow  guid- 
ance of  experience.  Others  have  presented  to  us  a  very 
different  picture,  and  have  described  men  as  living  in  one 
wide  community,  where  either  the  abundant  fruits  of  the 
earth  were  in  common,  or  the  products  of  the  joint  toil 
were  distributed  strictly  according  to  the  wants  of  each; 
and  where  justice  and  benevolence  were  as  yet  unstained. 
This  has  been  called  the  'golden  age,'  and  is  familiar  to 
your  classical  recollections. 

Others,  again,  have  supposed  the  original  state  of  man 
to  have  been  that  of  natural  and  incessant  hostility,  and 
ascribe  the  formation  of  society  and  government,  not  to 
the  instinctive  affections  of  the  race,  but  to  a  sort  of  com- 
promise between  their  respective  hostility  and  selfishness. 
We  shall  show  you,  from  the  nature  of  mankind,  from  the 
habitudes  that  have  distinguished  man  in  all  ages,  and  from 
authentic  history,  that  none  of  these  notions  are  wholly 
correct,  but  that  the  principles  of  both  love  and  fear,  peace 
and  hostility,  have  been  always  alike  in  operation. 

It  seems  evident,  in  the  first  place,  that  man  must  origin- 
ally have  been  created  with  his  corporeal  and  his  intellec- 
tual faculties  in  a  state  of  maturity;  for  had  it  been  other- 
wise, he  would  have  had  neither  'strength  to  procure  ali- 
ment, nor  judgment  to  have  made  a  proper  selection  of  it.' 
An  equally  probable  supposition  is  it,  that  he  had  his  pas- 
sions and  his  sympathies,  and  hence  that  he  would  have 
been  impelled  to  immediate  association.  An  agreeable  and 
sensible  writer  remarks,  that  'where  the  natural  historian 
treats  of  any  particular  species  of  animals,  he  supposes  that 
their  present  dispositions  and  instincts  are  the  same  which 


Lect.  II.]  OP  MAN  IN  A  STATE  OP  NATURE.  75 

they  originally  had.'*  Whenever,  therefore,  we  speak  of 
the  natural  state  of  man,  we  must  suppose  it  to  have  been 
one  that  harmonizes  at  least  with  his  general  nature.  Hence, 
we  have  good  reason  to  suppose  the  natural  state  of  man  to 
have  been  that  of  society;  we  cannot  suppose  him  to  be 
otherwise  than  essentially  social,  because  society  is  now 
universal,  and  man,  in  whatever  condition  he  be,  if  of  sane 
mind,  evinces  a  fondness  for  association  with  his  species. 
And  if  we  sometimes  have  found  a  wild  man  in  the  woods, 
he  is  so  far  from  being  a  sample  of  his  species  in  a  state  of 
nature,  that  he  is  in  fact  an  anomaly,  produced  either  by 
inclinations  peculiar  to  himself,  or,  what  has  probably  been 
the  truth  in  these  cases,  from  the  impossibility  of  his 
having  intercourse  with  others. 

The  state  of  nature  is  consequently  a  social  state.  Men, 
from  the  first,  must  have  been  endued  with  reason,  and  the 
faculty  of  progressive  improvement;  and  there  are,  more- 
over, certain  circumstances  which  must  have  existed,  and 
a  certain  knowledge  which  they  must  have  possessed,  with- 
out being  compelled  to  arrive  at  them  by  the  force  of  their 
own  reason;  or  this  noble  animal,  which  now  appears  des- 
tined to  an  almost  eternal  progression  of  improvement,  must 
have  perished  before  he  could  take  the  first  step.  He  was, 
no  doubt,  instructed  in  the  qualities  of  food,  since  he  does 
not,  like  all  other  animals,  instinctively  separate  the  saluta- 
ry from  the  noxious.  He  must  also  have  had  a  language 
already  constructed,  or  he  had  never  proceeded  beyond  a 
vocabulary,  a  mere  collection  of  appellatives  and  names. 
He  must  have  been  at  once  taught  the  utility  of  fire  and 
vesture,  since  nature  hath  neither  enabled  him  to  bear  all 
temperatures  alike,  nor  provided  him  with  a  natural  cover- 
ing to  resist  their  changes.  All  these  reflections  forbid  our 
reducing  him  to  the  state  of  nature,  as  it  is  understood  by 

*  Fergu.  on  Civ.  Soc.  3. 


76  OP  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II. 

those  philosophers  who  regard  man,  as  he  now  is,  as  little 
else  than  a  highly  cultivated  Pungos  or  Simea,  as  Lord 
Monboddo  and  others  have  contended.*  Mr.  Ferguson 
has  some  pertinent  remarks  on  the  point  now  under  consi- 
deration, which  are  as  follows.  'If  both  the  earliest  and 
latest  accounts,  accounts  collected  from  every  quarter  of  the 
earth,  represent  mankind  as  assembled  in  troops  and  com- 
panies, and  the  individual  always  joined  by  affection  to  a 
party,  while  he  is  possibly  opposed  to  another;  employed 
in  the  exercise  of  recolleclion  and  foresight;  inclined  to 
communicate  his  own  sentiments,  and  to  be  made  acquaint- 
ed with  those  of  others;  these  facts  must  be  admitted  as  the 
foundation  of  all  our  reasoning  relative  to  man.  His  mixed 
disposition  to  friendship  or  enmity,  his  reason,  his  use  of 
language  and  articulate  sounds,  and  the  shape  and  erect  po- 
sition of  his  body,  are  all  to  be  considered  as  so  many  attri- 
butes of  his  nature;  all  these  are  to  be  retained^  his  des- 
cription, as  the  wing  and  the  paw  in  that  of  the  eagle  and 
the  lion,  and  as  different  degrees  of  fierceness,  vigilance, 
timidity  or  speed  have  a  place  in  the  natural  history  of  dif- 
ferent animals. 't 

This  primitive  or  natural  state  of  man,  as  a  mere  brute 
animal,  has  been  denied  by  many  philosophers;  and  many 
poets,  historians  and  moralists  have  been  fond  to  repre- 
sent the  early  condition  of  the  human  race  in  a  very  dif- 
ferent light.  They  have,  as  has  been  already  intimated, 
pictured  his  primeval  state  under  the  emblem  of  gold, 
and  have  attached  to  it  all  that  is  delightful  to  the  senses, 
and  virtuous  and  desirable  in  morals.  Whilst,  therefore, 
these  last  have  traced  the  shameful  degeneracy  of  man; 
the  former  have  been  still  more  minute  in  delineating  his 
progressive  improvement  from  a  state  of  mere  animal  sen- 
sibility, to  the  refinement  of  reason,  the  invention,  use  and 

*Monbod.  Works,  1  vol.  book  1,  ch.  15.  j  Fergu.  Civ.  Soc.  4. 


I 


Lect.  II.]  OF  MAN  IN  A  STATE  OF  NATURB-  77 

cultivation  of  language,  the  formation  of  policed  societies, 
and  the  full  establishment  of  all  the  various  arts  known  to 
polished  life. 

If  we  search  for  the  facts  of  these  opposite  theories,  in 
the  history  of  men  and  nations,  we  shall  certainly  be  dis- 
appointed. That  societies  and  states  have  sometimes  arisen 
from  very  small  beginnings,  and  that  others  have  degene- 
rated from  vast  attainments,  and  great  moral  excellence,  to 
equal  illiterateness  and  vice,  is  entirely  true:  but  the  views 
of  the  two  classes  of  theorists  we  have  mentioned,  are  in  no 
degree  connected  with,  or  promoted  by  this  fact;  they  speak 
of  the  original  state  of  mankind,  and  would  have  us  to  be- 
lieve it  to  be  one  of  great  excellence,  or  of  equal  abjectness. 
With  Ferguson  we  again  coincide,  who  remarks  that  'man, 
in  his  rudest  state,  is  ever  found  to  be  above  the  brute, 
and,  in  his  greatest  degeneracy,  never  descends  to  their 
level.  In  every  condition,  he  is  still  a  man;  and  we  can 
learn  nothing  of  his  nature  from  the  analogy  of  other  ani- 
mals. If  we  would  know  him,  we  must  attend  to  him,  to 
his  course  of  life,  and  the  tenor  of  his  conduct.  With 
him  society  appears  to  be  as  old  as  the  individual,  and  the 
use  of  the  tongue  as  universal  as  that  of  the  hand  or  the 
foot.  If  there  was  a  time  in  which  he  had  his  acquaintance 
with  his  own  species  to  make,  and  his  faculties  to  acquire, 
it  is  a  time  of  which  we  have  no  record,  and  in  relation  to 
which  our  opinions  can  serve  no  purpose,  and  are  support- 
ed by  no  evidence.'* 

Rousseau,  in  discussing  the  question  of  the  divine  or  hu- 
man origin  of  language,  leaves  to  others  the  solution  of  the 
problem,  whether  a  society  already  formed  was  more  ne- 
cessary for  the  institution  of  language,  or  a  language  alrea- 
dy invented,  for  the  establishment  of  society.  Dugald 
Stewart,  in  commenting  on  this  point,  remarks  that  'the 

*Fergu.  Civ.  Soc.  12. 


7»  Or  MAN  IN  A  STATE  OF  NATURE.  [Lect.  11. 

supposed  difficulty  arises  merely  from  Rousseau's  own  pe- 
culiar and  paradoxical  theory  about  the  artificial  origin  of 
society;  a  theory  which  needs  no  refutation  but  the  short 
and  luminous  aphorism  of  Montesquieu,  that  man  is  born 
in  society ,  and  there  he  remains? 

We  are,  then,  to  understand  by  the  state  of  nature,  merely 
that  condition  in  which  men  exist  while  they  retain  their 
natural  liberty,  and  acknowledge  no  common  superior;  that 
is,  a  state  contradistinguished  from  the  civil  state;  and  it  is 
immaterial  to  us  whether  this  state  ever  had  an  actual  ex- 
istence or  not. 

(3.)  The  state  of  We  shall  have  but  little  to  say  on  this 
nature   merely  theo-  ..        i,.,.  ui.i.        i_  i 

retical  and  metaphy-  toPlc>  in  additl0n  *■*  w^at  has  been  alrea- 
sical.  dy  suggested. 

Whether  we  regard  this  state,  first,  as  one  of  bestial  ig- 
norance and  independence;  or  secondly,  of  great  illumina- 
tion, and  unalloyed  happiness;  or  lastly,  as  merely  that 
state  in  which  man  is  free  to  act  for  himself,  without  sub- 
jection to  any  external  control;  there  can  be  no  doubt  that 
there  never  was  a  period  in  which  mankind  were  in  it,  as 
thus  severally  described.  The  state  of  nature  so  much 
talked  of,  is  a  mere  figment  of  the  mind,  an  imaginary  con- 
dition of  the  human  race,  from  which  we  reason  in  regard 
to  the  rights  and  duties  of  man,  'as  if  such  a  state  had  ac- 
tually existed,  and  his  present  condition  were  one  super- 
induced on  the  other.  This  metaphysical  view  of  the  sub- 
ject contemplates  man  in  the  abstract,  and  enables  the  phi- 
losopher to  point  out  his  rights  and  obligations  in  that  sup- 
posed state,  and  how  they  have  been  variously  affected  by 
the  change  from  the  state  of  nature  to  that  of  society,  and 
political  government. 

(4.)  Its  metaphysi-       It  will  readily  occur  to  the  student,  that 
cal  sense  is  its  only 
useful  one.  the  real,  and  only  useful  signification  of 

this  phrase,  is  that  theoretical  state  in  which  moralists  have 

chosen  to  consider  man;  a  condition  in  which  he  is  viewed 


Lect.  II.]  OP  MAN  IN  A  STATE  OF  NATURE.  79 

as  wholly  unconnected  with  government  of  any  kind,  but 
still  endued  with  every  mental,  moral  and  physical  quality 
which  is  now  known  to  distinguish  him.  That  this  sup- 
posed state  may  be  made  the  foundation  of  just  and  legiti- 
mate rules  and  inferences  in  regard  to  man's  actual  rights 
and  obligations,  there  can  be  no  doubt,  when  we  advert  to 
the  fact  that  nothing  is  supposed  which  contradicts  his 
known  nature,  but  just  the  reverse.  The  whole  system  of 
natural  law  is  founded  on  an  intimate  acquaintance  with 
man's  essential  nature;  and,  moreover,  there  is  nothing  un- 
philosophical  in  deducing  rules  of  action  from  what  would 
be  the  duty  of  man  in  a  given  state.  Montesquieu  has  a 
pertinent  remark  which  will  illustrate  this  point;  it  is  this. 
'Before  intelligent  beings  existed,  they  were  possible:  they 
had,  therefore,  possible  relations,  and  consequently  possi- 
ble laws.  Before  laws  were  made,  there  were  relations  of 
possible  justice.  To  say  that  there  is  nothing  just  or  un- 
just, but  what  is  commanded  by  positive  laws,  is  the  same 
as  saying,  that  before  the  describing  of  a  circle,  all  the  radii 
were  not  equal.'* 

It  is  also  very  evident  that  every  human  art  has  its  own 
principles,  which  are  properly  called  the  science  of  that  art: 
thus,  the  optician's  handicraft  is  an  art;  the  principles  on 
which  his  glasses  and  telescopes  are  constructed,  are  the 
science;  and  all  these  principles  would  have  been  equally- 
true,  had  a  glass  never  been  made,  nor  the  various  lenses 
&c.  so  combined  as  to  form  a  telescope.  The  angle  of  inci- 
dence would  always  have  been  equal  to  the  angle  of  reflec- 
tion, had  a  mirror  never  been  cast,  or  had  a  surface  suffi- 
ciently smooth  to  reflect  a  ray,  never  existed.  In  the  same 
way,  the  laws  of  nature  would  have  been  equally  true  and 
existent,  had  never  an  individual  subsisted  in  a  state  of  na- 
ture, or,  indeed,  had  man  been  created  in  full  maturity,  and 

*Mont.  Spi.  Laws,  book  1.  page  2 


80  OF  MAN  IN  A  STATE  OF  NATURE.  [Lect.  n 

in  society,  his  actual  nature  being,  however,  the  same  as 
we  now  know  it  to  be. 

So,  likewise,  we  are  accustomed  to  speak  of  things  as 
just  and  unjust,  and  of  the  rules  of  perfect  justice.  But 
justice  is  itself  an  abstract  and  metaphysical  idea,  totally 
independent  of  its  actual  existence  among  mankind.  If 
we  spoke  of  justice  only  as  it  subsists  ,and  is  practised 
among  men,  we  should  recognize  a  very  different  idea  from 
that  which  is  presented  to  us  by  the  phrase,  'perfect  justice.' 
This  may  lead  you  to  a  clear  idea  of  what  philosophers 
mean  by  their  constant  reference  to  a  state  of  nature,  and 
to  natural  rights;  it  is  the  supposed  condition  of  individuals 
un-vnited,  and  their  possible  relations.  Mr.  Plowden, 
in  his  Jura  Jlnglorum,  remarks  on  this  subject,  that  the 
qualities  and  properties  of  this  state  bear  the  same  analogy 
to  the  actual  state  of  man  in  society,  as  the  principles  and 
properties  of  mathematicks  bear  to  practical  mechanicks:  but 
Mr.  Locke,  in  his  Treatise  on  Government,  though  he  de- 
scribes this  state  much  to  our  mind,  seems  to  speak  of  it  too 
much  as  one  of  actual  existence,  and,  like  most  who  have 
treated  the  subject,  has  not  been  sufficiently  careful  on  this 
point.  'To  understand  political  power  right,'  says  he  'and 
to  derive  it  from  its  original,  we  must  consider  what  state 
all  men  are  naturally  in;  and  that  is  a  state  of  perfect  free- 
dom to  order  their  actions,  and  to  dispose  of  their  posses- 
sions and  persons,  as  they  think  fit,  within  the  bounds  of 
the  law  of  nature,  without  asking  leave,  or  depending  upon 
the  will,  of  any  other  man;  a  state  also  of  equality,  wherein 
all  the  power  and  jurisdiction  is  reciprocal,  no  one  having 
more  than  another;  there  being  nothing  more  evident  than 
that  creatures  of  the  same  species  and  rank,  promiscuously 
born  to  all  the  same  advantages  of  nature,  and  the  use  of 
the  same  faculties,  should  be  equal  one  among  another,  with- 
out subordination  or  subjection.'*     We  have  quoted  this 

*  Locke  on  Gov.  168. 


Lect.  II.]  OF  MAN  IN  A  STATE  OP  NATURE.  81 

passage,  as  it  contains  a  clear  description  of  the  supposed 
state,  though  its  learned  author  has  not  adverted  to  it  in 
this  light. 

As  a  perfect  state  of  nature  would  he  that  in  which  men 
exist  without  any  positive  law  whatever,  so  the  furthest 
possible  removal  from  it  would  be  that  wherein  every  rule 
of  duty,  and  dictate  of  conscience,  was  enjoined  by  posi- 
tive laws,  and  all  natural  liberty  given  up,  and  then  por- 
tioned out  by  the  political  rule;  a  state  of  which  it  is  as 
impossible  to  conceive  the  actual  existence,  as  it  is  that  of 
the  other  extreme,  a  perfect  state  of  nature. 

When,  therefore,  writers  speak  of  the  transition  of  man 
from  the  first,  to  something  approaching  the  second  of 
these  states,  they  do  not  mean  us  to  imagine  that  this  was 
at  once  a  complete  transition,  made  at  a  single  point  of 
time,  but  a  gradual  change  of  ages,  more  or  less  progres- 
sive however,  according  to  circumstances.  Men  must  be 
presumed  to  have  parted  with  their  natural  rights  precise- 
ly in  proportion  as  they  entered  into  durable  social  conven- 
tions, and  agreed  to  the  establishment  of  permanent  rules: 
but  as  the  occasions  of  these  positive  enactments  could  only 
arise  gradually  in  the  various  modifications  and  events  of 
society,  so  it  is  obvious  that  in  the  mean  time  the  law  of 
nature  retained  its  force,  and  the  state  of  nature  (so  far 
forth)  its  existence.  Even  at  this  day,  therefore,  indivi- 
duals are  in  a  state  of  nature,  and  are  directed  by  the  laws 
of  nature,  in  every  thing  that  regards  such  rights,  and 
their  enforcement,  as  have  not  been  modified  by  the  posi- 
tive or  implied  laws  and  institutions  of  society.  This 
may  be  easily  illustrated  by  examples;  for  instance,  the 
rights  of  Extreme  Necessity,  and  of  Harmless  Profit,  are 
based  on  this  principle.  The  former  occurs  under  a  variety 
of  circumstances,  as,  for  example,  in  the  case  of  self-de- 
fence, which  is  justified  and  regulated  by  the  law  of  nature, 
and  the  individual  exercising  it,  is  pro  hdc  vice  in  a  state 
11 


82  OF  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II. 

of  nature.  In  this  case  civil  subjection  ceases  either  in 
fire/,  or  of  right,  and  the  arm  of  the  civil  power  being 
incompetent  to  afford  relief  to  the  individual,  he  is  remit- 
ted to  his  original  state,  and  must  be  guided  iherein  by  the 
only  law  of  that  state.  Under  this  right  of  Extreme  Ne- 
cessity, we  may  appropriate  the  property  of  others  for  our 
immediate  relief,  and  to  prevent  starvation,  if  there  be  no 
other  means  of  warding  off  that  calamity.  So,  also,  in  a 
storm  at  sea,  we  may  cast  overboard  the  property  of  others 
for  the  preservation  of  life,  or  to  remove  a  difficulty  which 
might  jeopard  it.  In  some  instances  we  may  even  inflict 
death  for  the  preservation  of  our  life  or  property;  a  woman 
may  slay  him  who  would  dishonour  her;  a  husband  or  a 
father  is  justified  in  killing  one  who  attempts  to  dishonour 
his  wife  or  daughter.  In  all  of  these  cases,  where  it  is 
supposed  that  we  should  wait  in  vain  for  the  aid  of  the 
civil  power,  we  should  he  satisfied,  however,  that  the  jeo- 
pardy exists,  and  that  all  relief  is  absent.  Jurisdiction  and 
subjection  having  then  ceased  in  fact,  we  are  restored  to 
a  sta  e  of  nature,  and  to  the  rights  and  protection  of  the 
natural  law. 

The  right  of  Harmless  Profit,  if  it  exists,  is  the  right  of 
using  another  man's  property  for  our  benefit,  when  it  can 
be  done  without  prejudice  to  the  owner. *<  It  is  con- 
tended by  some  that  this  is  a  right  of  natuie  which  has 
never  been  relinquished;  that  originally  all  things  being  in 
common,  the  institution  ot  property  was  only  to  answer 
certain  purposes,  with  which  the  right  of  harmless  profit 
is  not  at  variance,  as  it  benefits  those  who  claim  it,  with- 
out prejudicing  those  of  whom  it  is  asked.  It  is  plain, 
however,  that  such  a  right  must  be  theoretical  only,  for  in 
practice  it  is  so  precarious  as  to  render  it  doubtful  if  it 
can   be  classed  among  rights  of  any  kind.      It  is  admitted 

■  l  Ruth.  Inst,  book  1,  ch.  5,  8.  R. 


Lect   If.]  OV  MAN  IN   A   STATE  OF  NATURE.  83 

that  the  proprietor  is  the  sole  judge  of  the  extent  to  which 
the  right  shall  be  exercised;  and  a  doubtful  right,  to  be  used 
only  to  such  an  extent  as  others  shall  dictate,  can  be  of  little 
value. 

It  was  at  one  time  supposed  in  England,  that  the  right  of 
harmless  profit  was  sufficient  to  sustain  what  in  that  coun- 
try is  called  the  common  law  right  of  gleaning,  and  which 
consisted  in  the  privilege  claimed  by  the  necessitous  and 
indigent  people  of  a  neighbourhood,  of  entering  on  the 
fields,  after  harvest,  and  gleaning  therefrom  the  scattered 
remains  of  corn  and  straw,  which  had  escaped  the  gather- 
ers of  the  crop.  The  practice  is  an  ancient  one  in  other 
countries  as  well  as  in  England,  and  has  been  referred  not 
only  to  the  jus  naturae,  but  to  the  humane  provision  of  the 
Mosaic  law.*  The  validity  of  this  right  has  been  twice 
the  subject  of  legal  adjudication  in  England,  and  in  both 
instances  the  right  has  been  denied;  so  that  it  is  no  longer,  if 
it  ever  were,  a  part  of  the  common  law  of  that  country. t 
As  a  natural  right,  its  existence'is  doubtful;  as  a  Mosaical 
institution,  it  is  not  at  this  time  obligatory;  and  as  a  common 
law  right,  it  was  never  legally  sustained. 

So,  also,  this  status  naturalis,  and  the  principles  of 
natural  jurisprudence,  may  be  said  to  exist  for  many  pur- 
poses between  nations.  International  law  is  said  to  be 
based  on  the  law  of  nature;  a  large  portion  of  the  Jus  Gen- 
tium is  nothing  more  than  the  Lex  Naturae  applied  to  na- 
tions, considered  in  the  light  of  individuals  in  a  state  of 
nature.  As  there  is  between  nations  no  common  superior, 
no  general  tribunal  to  which  an  appeal  can  be  made  to  settle 
differences,  the  great  code  of  natural  law  is  the  only  one 
which  can  be  resorted  to;  and  to  enforce  its  decisions  the 
nation  interested  in  its  maintenance,  has  no  other  means 


*  Levit.  ch.  19,  v.  9,  ch.  23,  v.  22. 

f  Steel  v  Houghton,  1  Henry  Blackstone's  Reports  53.  3  Black.  Comm.  212. 


84  OF  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II. 

than  the  compulsory  one  of  war.  Independently,  then,  of 
treaties,  and  acknowledged  customs  and  usages  between 
nations,  there  is  no  other  rule  of  conduct  that  the  jus  na- 
tural. Hence,  the  relation  which  subsists  between  nations 
bound  by  no  treaties,  is  almost  identical  with  that  which 
would  exist  between  individuals  in  a  state  of  nature. 

But  to  return  to  our  inquiry  whether  a  state  of  nature 
ever  had  an  actual  existence.  There  can  be  no  doubt  that 
if  this  perfect  state  ever  existed  for  a  short  time,  it  waa 
broken  by  the  very  first  pair  of  human  entities,  since  even 
they  were  speedily  controlled  by  a  law,  or  something  equiva- 
lent thereto.  Mr.  Plowden  remarks  that  'it  is  incontroverti- 
ble, that  the  only  individual  who  can  be  said  in  any  sense  to 
have  existed  in  a  state  of  nature,  was  Adam  before  the  for- 
mation of  his  wife.'  But,  if  the  inquiry  be  worth  pursuing 
to  so  remote  an  age,  and  as  to  individuals  so  peculiarly  cir- 
cumstanced as  were  our  first  parents,  it  appears  to  us  that 
Eve  also  was  in  that  state,  during  that  instant  of  time  be- 
fore she  was  subjected  to  the  authority  and  law  of  her  hus- 
band. Nay,  further,  as  a  convention  or  contract  is  not 
strictly  a  law,  and  as  the  wife  was  not  subjected  to  her 
husband  until  after  the  fall,  by  the  command,  or  rather 
punishment  of  God,  the  state  of  nature  as  to  both,  might 
be  said  to  have  continued  until  that  period,  which,  although 
a  punctum  tcmporis  when  compared  with  the  ages  which 
have  since  elapsed,  was  perhaps  a  considerable  portion  of 
their  own  existence.  Be  this  as  it  may,  for  we  have  no 
means  of  ascertaining  the  period  which  elapsed  between 
the  creation  of  Eve,  and  the  fall,  that  period,  whether  short 
or  long,  must  have  been  a  state  of  nature,  since  the  wife 
did  not  become,  till  after  the  fall,  subjected  to  the  law  of 
her  husband.  But  if  Adam  were  in  this  state,  and  Eve 
also  until  she  became  subjected  to  him,  it  would  not  contra- 
dict our  previous  assertion  that  a  state  of  nature  never  exist- 
ed, and  is  a  merely  theoretical  state,  presumed  by  writers  on 


Lect.  IT]  ©p  MAN  IN  A  STATE  OF  NATURE.  85 

natural  law,  for  certain  useful  purposes.  For  in  speaking;  of 
this  state,  whether  actual  or  supposed,  we  must  be  under- 
stood to  refer  altogether  to  a  state  in  which  mankind  were, 
and  not  to  that  of  two  individuals  circumstanced  as  Adam 
and  Eve.  No  advantage  could  result  from  ascertaining 
the  fact  of  such  an  actual  state  of  nature,  and,  consequently, 
we  may  correctly  assert  that  that  state  is  wholly  imaginary, 
although  it  should  be  proved  that  our  first  parents  were  in 
it  for  a  time.  Viewing  the  question  in  this  light,  it  is 
quite  obvious  that  this  state  is  merely  hypothetical,  as 
there  are  many  rights  which  are  correctly  termed  natural, 
and  yet  could  never  have  been  exercised  in  a  state  of  na- 
ture even  such  as  that  of  Adam,  before  or  after  the  fall, 
or,  indeed,  in  such  a  state  of  nature  as  Hobbes  contends 
for,  in  which  great  numbers  of  human  beings  existed  at  the 
same  time,  but  wholly  separate  and  independent  of  each 
other.  Men,  for  example,  have  a  right  to  the  obedience  of 
their  children  to  a  certain  age,  and  to  their  tenderness  and 
gratitude  at  every  age:  they  had  this  right  as  perfectly  be- 
fore any  children  were  born  to  them,  as  after;  and  yet  in 
either  of  these  supposed  states  of  nature,  they  had  not  the 
actual  exercise  and  enjoyment  of  it.  Without  this  under- 
standing of  natural  rights,  those  rights,  the  broadest  and 
the  most  comprehensive,  would  be  narrowed  to  an  insig- 
nificant catalogue:  they  are  not  the  less  natural  rights,  be- 
cause neither  exercised  nor  enjoyed;  it  is  sufficient  if  they 
be  clearly  ours  when  circumstances  occur  in  which  they 
may  be  actually  enjoyed.  Hence  we  are  led  to  another 
and  much  broader  idea  of  the  natural  law,  viz.  a  system  of 
rules  of  action  suitable  to  promote  the  greatest  utility  to 
man  in  all  stages  of  his  being;  an  abstract  perfection,  after 
which  legislation  labours  in  all  modifications  of  human  ex- 
istence and  society.  You  will  find,  indeed,  this  abstract 
standard  constantly  appealed  to  in  all  disquisitions  concern- 
ing human  rights  and    duties.     As   men  are   presumed  to 


S6  OF  MAN  IN  A  STATE  OP  NATURE.  [Lect.  II. 

depart  from  their  natural  state  only  with  a  view  to  the  en- 
joyment of  a  better,  and  as  they  only  relinquish  a  portion 
of  their  rights,  or  modify  them,  in  order  that  they  may 
enjoy  the  remainder  of  them  the  better,  we  naturally  seek 
to  ascertain  how  much  we  are  really  obliged  to  give  up,  in 
order  to  secure  the  balance.  When,  therefore,  we  form  the 
constitution  or  laws  of  a  society,  we  decide  what  portion 
too  much  of  our  natural  rights  is  demanded  of  us  in  return 
for  their  protection;  and  we  are  accustomed  to  say  they  in- 
vade so  much  of  the  natural  rights  of  man;  not  those  rights 
only  which  actually  existed  in  a  state  of  nature,  but  those 
which  we  are  still  entitled  to  enjoy,  after  deducting  those 
whose  relinquishment  is  essential  to  the  establishment,  the 
conservation,  and  the  peace  of  well  regulated  society. 

From  all  that  has  been  said,  we  think  that  writers  on 
natural  law  have  not  been  sufficiently  explicit  in  stating, 
that  the  so  much  spoken  of 'state  of  nature'  is  a  merely  hypo- 
thetical one;  and  that  their  neglect  in  this  respect  has  been 
the  cause  of  some  serious  practical  errors,  and  false  princi- 
ples, in  regard  to  our  rights  in  society,  and  the  true  rela- 
tion which  subsists  between  those  who  govern  and  are 
governed.  To  these  mistaken  notions  are  we,  in  part,  to 
ascribe  some  of  the  doctrines  of  revolutionists  in  all  ages; 
the  opinions  of  the  Illuminati,  and  Jacobin  demagogues 
throughout  the  worid,  who  from  design,  more  frequently 
than  from  ignorance,  have  endeavoured  to  confound  the 
two  states  together,  or  to  transfer  the  properties  of  the 
state  of  nature,  whether  actual  or  supposed,  to  the  state  of 
society;  an  amalgamation  impossible  to  be  made,  and  ever 
fraught  vvith  the  most  alarming  mischiefs. 

(5)    Whether   the       The  ingenuity  of  philosophers  has  been 

state    of    nature    be  ,  •.     i  A     i  1     .1         i.u:      *  * 

„„„     ~  f  much  excited  to  know  whether  this  state, 

one    01     war    or   of  ' 

peace.  if  actual,  were   one  of  peace  or  of  war. 

The  establishment  of  a  common  superior,  or  chief  magis- 
trate, must  have  been  with  the  intent  to  remedy  some  evils. 


Lect.  II.]  OF  MAN  IN  A  STATE  OP  NATURE.  87 

or  to  improve  some  advantages;  and  it  is  a  curious  ques- 
tion, not  entirely  devoid  of  profit,  whether  it  was  most  in 
the  pursuit  of  good,  or  in  the  avoidance  of  evil,  that  these 
infant  associations  were  formed. 

This  controversy  was  first  started  by  the  celebrated  Tho- 
mas Hobbes,  in  his  treatise  De  Corpore  Politico.  The 
character  and  opinions  of  this  distinguished  man  were  pre- 
cisely such  as  we  should  expect  to  find  in  one  who  argued 
with  learning  and  gravity  the  point  we  have  now  under 
consideration,  and  decided  it  in  favour  of  the  natural  hos- 
tility of  man  against  man.  Mr.  Hobbes's  philosophy  may 
be  very  briefly  summed  up  as  follows.  He  asserts  that  by 
the  law  of  nature,  every  man  has  a  right  to  all  things,  and 
over  all  persons;  his  maxim  being,  Nat  lira  dedit  omnia 
omnibus:  that  the  natural  condition  of  man  is  a  state  of 
war,  a  war  of  all  men  against  all  men:  that  every  one  acts 
reasonably  who  endeavours,  as  far  as  possible,  to  master  all 
the  persons  of  others,  till  he  sees  no  power  great  enough 
to  endanger  his  own:  that  the  civil  laws  are  the  only  rules 
of  good  and  evil,  of  just  and  unjust,  honest  and  dishonest, 
and  that  antecedently  to  such  laws,  every  action  is  in  its 
own  nature  indifferent:  that  there  is  nothing  good  or  evil 
in  itself,  nor  any  common  laws  constituting  what  is  uni- 
versally just  or  unjust:  that  all  things  are  estimated  by  what 
every  man  judgeth  to  be  fit,  where  there  is  no  civil  govern- 
ment, nor  any  law  to  regulate  conduct:  that  the  power  of  a 
sovereign  is  necessarily  absolute,  and  that  he  is  not  bound 
even  by  any  compact,  however  solemn,  with  his  subjects: 
that  nothing  which  a  sovereign  can  do  to  the  subject,  can 
be  called  wrong  or  imperious:  that  a  sovereign's  word  is 
sufficient  to  take  any  thing  from  any  of  his  subjects,  if  there 
be  need  so  to  do,  and  that  the  sovereign  is  the  exclusive 
judge  of  the  necessity,  his  fundamental  maxim  in  this  re- 
spect being,  Non  Veritas,  sed  auctoritas  facit  legem. 


88  OP  MAN  IN  A  STATE  OF  NATURE.  [Lect  II. 

The  foregoing  is  a  faithful,  though  a  very  brief  epitome 
of  the  gloomy  philosophy  of  this  extraordinary  man. 

Notwithstanding  these  bold  and,  we  venture  to  say,  ab- 
surd doctrines,  the  philosopher  of  Malmesbury  has  been 
regarded  with  great  veneration  by  the  learned  generally, 
and  has  had  many  advocates,  or  at  least  friends,  who  have 
endeavoured  to  prove  that  he  has  been  either  misunder- 
stood, or  grossly  perverted.  Others,  again,  have  adopted 
some  of  his  sentiments  with  a  zeal  fully  equal  to  their  mas- 
ter's. His  doctrine  as  to  the  natural  hostility  of  man  against 
his  own  species,  has  certainly  had  many  opponents,  but  it 
has  also  not  been  without  its  supporters.  Mr.  Hobbes  goes 
on  the  hypothesis,  in  the  first  place,  that  men  must  origin- 
ally have  existed  in  great  numbers  at  the  same  time;  a 
supposition  highly  improbable,  not  conformable  to  the  gen- 
eral opinion,  and  unsustained,  not  only  by  the  general  his- 
tory of  the  infancy  of  mankind,  but  by  that  record  which, 
if  even  not  divine,  is  entitled  to  high  consideration;  but 
being  divine,  is  conclusive  on  the  subject.  Taking  this 
writer,  however,  on  his  own  grounds,  his  position  is  mere 
assertion,  and  his  inferences  from  that  assertion  are,  as  we 
hope  to  prove,  not  even  plausible,  much  less  true.  Before 
we  proceed  to  the  further  examination  of  this  point,  it  is 
proper  to  remark  that  the  phrase,  'state  of  nature,'  has  been 
used  in  three  distinct  senses,  so  that  what  may  be  predicated 
of  the  one,  as  to  its  being  a  state  of  war  or  of  peace,  may 
not  be  applicable  to  the  other.  In  the  first  sense  it  means 
nothing  more  than  the  natural  disposition  or  tendency  of 
mankind,  considered  as  beings  compounded  of  reason  as 
well  as  passion;  and  is  that  state  which  it  is  believed  would 
be  the  most  consentaneous  to  the  nature  of  man  abstractly. 
This  is  a  meaning  wholly  synonymous  with  the  expression, 
'natural  character  of  man,'  and,  in  truth,  does  not  import 
a  state  or  condition  of  the  species,  nor  refer  to  the  fact 
whether  mankind  were  associated  or  not;  or,  if  associated, 


Lect.  11]  OF  MAN  IN  A  STATE  OF  NATURE:  89 

whether  it  were  in  mere   primary  societies,  or  in  those  of 
a  political    nature.      The  second    meaning  of  this   phrase 
is  the  usual  one,  viz.  man's  actual   or  supposed    primitive 
condition,  without  society  of  any  kind;  and   the  third  im- 
ports his  like  condition  in  a  rude  or  primary  society,  but 
without  any  superior,  government  or  laws.      In  regard  to 
Hobbes's  opinion,  no  difficulty  can  arise  from  this  threefold 
meaning,  since  his  doctrine  covers  the  whole.     He   con- 
tends that   in   all,  or  either  of  these  meanings,  the   state 
of  nature  is  one  of  war;    that  man's  natural   tendency  or 
character  is  that  of  hostility  against   his  species;  and  that 
this  is  equally  the  case  whether  he  be  solitary,  and  wholly 
unallied,  or  in  a  state  of  primary  association.     There  are 
various  philosophers  who  have  partially  adopted  the  views 
of  Hobbes;  among  the  rest  we  find   Mr.  Da^ge,  a  learned 
and  sensiole  writer,  who,  notwithstanding  various  qualifi- 
cations and  nice  distinctions,  (as  if  ashamed  to  go  all  le-  gibs 
with  the  philosopher  of  Malmesbury,)  has,  we  think,  so  far 
adopted  his  hypothesis  as  to  be  responsible  for  its  absurdi- 
ties and  its  mischiefs,  if  there  be  any.      Mr.  Dagge  admits 
the  general   pacific  nature  or  character  of  man.  and  that  if 
the  first  of  the  meanings  we  have  stated,  be  applied  to  the 
question  now  under  consideration,  then  the  state  of  nature 
is  undoubtedly  pacific;  but,  singular  as  it  may  appear,  he 
still   concurs  fully  with    Hobbes  in  regarding   the  state  of 
nature  as  essentially  hostile,  when   the  question  is  applied 
to  either  of  the  remaining  acceptations. 

As  we  think  that  Mr.  Dagge  has  conceded  too  much,  and 
indeed  nearly  every  thing  to  Mr.  Hobbes,  in  admitting  the 
state  of  nature  to  be  one  of  war,  when  we  mean  by  that 
state,  man's  condition  without  society  or  law;  and  as  we 
also  believe  that  he  has  involved  himself  in  extreme  diffi- 
culty, if  not  contradiction,  when  he  allows  man's  natural 
tendency  to  be  pacific,  and  yet  contends  that  his  primitive 
condition  is  that  of  war;  we  shall  be  excused  if  we  state 
12 


90  OF  MAN  IN  A  STATE  OP  NATURE-  [Led.  H 

his  views  in  detail,  and  make  such  comments  on  them  as 
may  enable  you  clearly  to  perceive  the  difference  between 
the  opinions  of  Hobbes  and  Mr.  Dagge,  and  also  to  detect 
the  fallacy  of  the  entire  argument  of  the  latter  writer. 

If  we  are  to  understand  by  the  state  of  nature  nothing 
more  than  man's  condition  when  wholly  without  society 
and  laws,  either  civil  or  political,  then,  says  Mr.  Dagge, 
'it  is  difficult  to  conceive  how  such  a  state  can  be  one  of 
peace,  for  though  it  be  admitted  that  men  in  general  are 
pacifically  inclined,  yet  the  few  who  are  guided  by  their 
passions,  would  necessarily  involve  the  rest  by  turns  in 
disputes  with  them.'  He  further  remarks,  that  'whenever 
there  is  no  common  tribunal  to  which  the  contending  par- 
ties may  appeal,  and  submit  their  differences,  there  the  de- 
cision must  be  by  force,  and  such  a  state  may  properly  be 
termed  a  state  of  war,  in  which  every  one  retains  his  pri- 
vate right  of  redress  and  revenge.' 

In  reply  to  these  observations,  we  have  occasion,  at  this 
time,  only  to  remark,  that  they  are  liable  to  the  common 
objection  of  proving  too  much;  for  if  the  mere  fact  of  the 
right,  of  redress  remaining  with  individuals  in  a  state  of  na- 
tme,  be  sufficient  to  characterize  it  as  a  state  of  war,  then 
must  the  relation  or  state  subsisting  between  nations,  be 
equally  and  essentially  a  state  of  war.  Each  nation,  in  the 
great  collection  of  nations  which  divide  the  human  family, 
possesses  the  same  right  of  redress  and  revenge  that  is  at- 
tributed to  every  individual  in  a  state  of  nature.  Nations 
have  no  common  tribunal;  they  are  in  a  state  of  nature,  as 
much  so  as  are  individuals  when  without  society  and  law; 
and  consequently  all  nations  must  be  regarded,  at  this  time, 
as  essentially  in  a  state  of  war,  as  far  as  that  state  has  not 
been  modified  by  treaties  between  them,  which  indeed,  on 
the  basis  of  this  theory,  can  scarcely  be  deemed  sufficient 
to  relieve  even  those  thus  allied,  from  the  imputed  state  of 
war. 


Lect.  II.]  OF  MAN  IN  A  STATE  OF  NATURE.  91 

Puffendorf    has    argued    this    mooted    question    against 
Hobbes,  and  so  has  Grotius;   the  first  observing,  that  the 
causes  which,  according  to  Hobbes,  render  men  offensive 
and  hostile  to  each  other,  are  mostly  of  a  particular  nature, 
and  consequently  not  of  such  universal  influence  as  to  make 
all  mankind  hostile  to  each  other,  and  at  most,  could  only 
set  a  comparatively  small  number  of  individuals  at  variance; 
while  Grotius  thinks  that  men  may  live  pacifically  in  a  state 
of  nature,  if  they  live  in  great  simplicity.     To  these  views 
Mr.  Dagge  has  made  several  objections,  to  which  we  shall 
presently  advert.    Montesquieu  also  sides  with  Grotius  and 
Puffendorf,  and  contends,  in  opposition  to  Hobbes's  theory, 
that  man  in  a  state  of  nature  would,  first  of  all,  think  of  the 
preservation  of  his  own  existence,  that  he  would  immedi- 
ately become  sensible  of  his  weakness,  and  that  his  timidity 
would   be  excessive.     To  sustain  himself  in  this  idea,  he 
cites  the  case  of  the  savage   youth  who  was  found   in  the 
woods  of  Hanover.     We   have    hastily  referred   to    these 
weighty  names,  as  the  most  distinguished  among  those  who 
have  contended  against  Mr.  Hobbes:  our  time  will  not  per- 
mit us  to  give  even  a  summary  of  their  views.    This  would 
be   the   more   unnecessary,  as  we  do   not  entirely  concur 
with  them,  and    shall   have  occasion  to  dwell   perhaps  too 
long  on  the  point,  in  examining  more  particularly  the  doc- 
trines of  Mr.  Dagge,  who  endeavours  to  strike  out  a  new 
distinction,  when  there  is  no  real  difference,  and  who,  we 
think,  is  more  likely  to  mislead  young  minds  on  this  sub- 
ject, than   even   the   learned   author  of  the   theory.      The 
question  under  examination  is,  in  the  abstract,  of  no  great 
importance;   but  as  it  involves,  in  its  extended  considera- 
tion, a  great  variety  of  topicks  of  great  interest  in  the  na- 
tural law,  we  shall   be  excused  if  we  are  unwilling  yet  to 
part  with  the  subject. 

Is  the  'state  of  nature,'  in  any  sensible  use  of  that  phrase, 
a  state  of  peace  or  of  war;   that  is,  do   the  propensities  of 


92  OF  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II. 

mankind  in  thai  state,  decidedly  preponderate  to  love  and 
kindness,  or  to  hatred  and  revenge  towards  iheir  species?  If 
we  look  at  the  primitive  condition  of  man,  as  it  is  recorded 
in  the  Scriptures,  and  which  is  indeed  the  only  intel- 
ligible account  we  have,  in  the  form  either  of  history  or  of 
hypothesis,  we  shall  find  that  the  human  race,  however  di- 
versified, are  the  offspring  of  a  single  pair,  endowed  at  first, 
and  even  after  their  fall,  with  the  qualities  requisite  for 
their  preservation  and  improvement,  and  attached  by  na- 
tural ties  to  the  protection  and  instruction  of  their  offspring, 
who,  in  their  turn,  bestowed  a  similar  attention  on  their 
own.  The  state  of  nature  therefore  had,  in  one  sense,  an 
existence  for  scarcely  a  moment;  not  longer  than  while  the 
first  pair  of  human  beings  were  deliberating,  if  indeed  they 
did  deliberate,  whether  they  should  yield  to  the  instinct 
within  them,  and  rush  into  the  first  embrace.  Their  children 
imbibed  from  them  the  habit  of  obedience,  and  learned  the 
duty  from  the  necessity  of  it;  and  when  they  separated 
from  the  parent  stock,  and  carried  with  them  their  pro- 
geny into  other  districts  of  the  forests,  they  did  not  carry 
with  them  independent  individuals  but  families,  who  gave 
obedience  for  sustenance  and  affection,  and  between  whom 
and  themselves  there  existed  a  state  of  society  as  complete 
for  all  its  purposes,  as  are  the  most  complex  governments 
for  theirs.  Does  society  imply  numbers?  we  answer,  only 
thus  far,  that  there  shall  be  some  to  govern,  and  some  to 
obey,  and  the  primitive  families  had  these.  Does  it  imply 
a  governor?  it  was  to  be  found  in  the  father  of  a  primitive 
family.  Does  it  imply  a  contract?  it  was  complete  be- 
tween the  parent  who  had  reared,  and  the  children  who 
had  been  nurtured,  for  many  years.  Does  it  imply  laws? 
the  various  relations  of  a  family  would  speedily  teach  and 
enforce  them,  because  of  the  daily  necessity  for  rules  even 
in  the  least  numerous,  and  best  affectioned  of  these  minia- 
ture societies.    Does  it  imply  sanctions?  these  existed  in  the 


Lcct  II.]  OF  MAN  IN  A  STATE  OP  NATURE.  93 

natural  affection  which  the  children  bore  towards  their  pa- 
rents, and  in  the  necessity  of  sustenance,  which  they  were 
to  derive  from  those  whose  skill  and  labour  could  procure 
for  them,  what  their  own  were  inadequate  to  obtain.  From 
the  foregoing  view,  which  might  have  been  greatly  extend- 
ed in  order  to  show  how  similar  must  have  been  the  primi- 
tive condition  of  man  to  those  subsequent  associations  called 
nations,  or  civil  societies,  we  clearly  perceive  that  under 
any  plausible  view  of  the  origin  and  progress  of  man,  it  is 
neither  just  nor  logical  to  assume  the  preponderance  of  any 
one  set  of  affections,  of  fear,  hostility,  pride,  arrogance, 
&c  on  the  one  hand,  or  of  love,  sociality,  sense  of  weak- 
ness, gentleness,  &c.  on  the  other;  that  is,  in  other  words, 
to  suppose  that  the  state  of  nature  was  a  state  either  of  ex- 
clusive war,  or  of  exclusive  peace.  Whether  we  regard 
men  as  originating  and  existing  in  the  mode  we  have  just 
deduced  from  the  Scripture  History,  or  take  the  theory  of 
Hobbes,  and  imagine  them  subsisting  in  large  numbers  at 
once,  we  still  contend  that  it  cannot  be  justly  maintained 
that  they  would  be  actuated  by  one  set  of  predominant  pas- 
sions. We  believe,  on  the  contrary,  and  the  opinion  is 
justified  by  all  subsequent  history  and  knowledge  of  our 
species,  that  they  would  be  actuated  by  various  and  very 
opposite  emotions,  according  to  circumstances;  that  they 
would  love  and  hate,  be  pleased  and  angered,  be  at  peace 
and  in  broils,  as  they  had  abundance  or  deficiency  of  food 
and  shelter;  according  as  they  were  thinly  or  thickly  esta- 
blished in  particular  spots;  and,  mainly,  according  as  they 
were  attracted  by  congenialities  of  temper  and  pursuits, 
which  we  know  are  the  most  apt  to  link  men  together 
through  all  difficulties,  which  make  them  deny  themselves, 
out  of  mutual  affection,  even  of  the  first  necessaries  of  life, 
and  which  cause  them  to  think,  more  especially  where  the 
sexes  are  different,  that  no  privation  is  too  much,  so  that, 
they  can  enjoy  the  comfort  of  a  society  of  their  own  selec- 


■J4  OV  MAN  IN  A  STATE  OF  NATURE.  [Lect.  II. 

lion.  This  point  then,  so  much  vexed  among  philoso- 
phers, appears  to  us  to  resolve  itself  into  a  simple  question 
like  the  following.  If  two  individuals  of  the  human  race, 
with  their  powers  of  reasoning  in  operation,  though  with- 
out knowledge,  and  with  their  natural  qualities  of  heart 
unvitiated  and  unhiassed,  and  who  had  never  seen  society, 
were  to  meet  together  on  some  desert  island,  would  they 
view  each  other  with  distrust  and  hatred,  or  come  imme- 
diately into  habits  of  affection  and  intimacy?  Would 
neither  of  these  individuals,  (according  to  Hobbes's  philoso- 
phy) ever  rest  until  one  or  the  other  had  not  only  subdued 
surrounding  nature  to  his  sovereignty,  but  conquered  and 
enslaved  the  only  one  of  his  species  he  had  ever  seen,  or 
was  likely  to  see;  and  after  gaining  the  mastery,  would 
the  victorious  individual,  (adopting  Hobbes's  favourite 
maxim,  Non  Veritas  sed  auctoritas  facit  legem,)  feel  him- 
self under  no  obligation  whatever  to  the  man  he  had  sub- 
dued, and,  forever  suspecting  him  of  treachery,  be  always 
alert  to  preserve  an  equal  measure  of  rigidity  towards  him, 
lest  he,  in  turn,  should  get  the  ascendancy,  and  exercise  it 
in  the  same  way,  as  of  right  he  may,  according  to  this  sul- 
len philosophy.  Or,  again,  the  question  may  be  thus  mo- 
dified. Does  our  knowledge  of  the  natural  dispositions  of 
mankind  justify  the  opinion,  that  persons  thus  situated, 
would  be  more  apt  to  disagree,  and  to  assert  their  respec- 
tive desires  by  resort  to  force,  than  to  harmonize,  and  live 
in  peace?  In  settling  such  a  question,  an  abstract  one  in 
itself,  it  would  clearly  be  improper  to  allow  any  thing  for 
peculiarity  of  disposition:  the  two  supposed  individuals 
must,  in  this  question,  stand  as  the  representatives  of  the 
human  race,  and  their  conduct  on  such  a  meeting,  must  be 
concluded  to  be  that  which  seems  natural  from  our  acquain- 
tance with  the  human  character.  Now,  if  there  be  any 
quality  which  particularly  distinguishes  mankind,  it  certain- 
ly is  sociality.      Other  animals,  as  was  shown  in  the  pre- 


Lect.  II.]  OF  MAN  IN  A  STATE  OF  NATURE.  95 

ceding  lecture,  though  they  meet  in  companies,  are  merely 
gregarious,  not  rising  to  that  strong,  constant,  and  yet  se- 
lecting quality,  which  we  term  sociality,  and  which  has 
characterized  man  in  all  ages,  and  under  all  circumstances. 
If  communities  are  small  when  men  are  in  the  infancy  of 
agriculture,  or  are  yet  herdsmen,  it  is  not  because  they  are 
antisocial,  but  because  their  means  are  small,  and  they 
must  remain  separate  to  have  enough.  If  they  are  smaller 
yet  when  they  are  hunters,  it  is  owing  to  their  means  of 
subsistence  being  still  more  restricted,  and,  consequently,  to 
their  requiring  a  proportionally  wider  surface  of  country  to 
supply  them.  We  conclude,  therefore,  that  men  associate 
from  a  feeling  which  is  in  a  great  degree  instinctive,  namely 
the  social  principle,  and  are  only  separated  by  circumstances. 

To  say,  because  this  state  of  association  is  sometimes 
interrupted  by  competitions,  and  even  contests,  that  the 
natural  state  of  man  is  one  of  warfare,  is,  we  think,  no 
less  unkind  than  illogical.  The  two  individuals  whom  we 
have  supposed,  would,  it  seems  to  us,  be  irresistibly  at- 
tracted to  each  other,  even  if  they  were  not  of  opposite 
sexes:  they  would  seek  their  food,  and  eat  it  together:  they 
would  league  themselves  against  the  beasts:  they  would 
explore  together  the  solitudes,  in  order  to  enliven  their 
dreariness:  they  would,  in  short  be  mainly  dependent  on 
each  other  for  comfort  and  cheerfulness;  and  if  they  dis- 
puted sometimes  about  the  division  of  their  food,  the  direc- 
tion of  their  wanderings,  or  the  place  and  time  of  rest, 
these  collisions  would  be  mere  episodes  in  an  existence, 
the  principal  charm  of  which  would  be  drawn  from  an  in- 
tercourse of  thoughts  and  sentiments,  which  would  not  be 
surrendered  for  interests  comparatively  so  unimportant  to 
their  happiness. 

The  foregoing  observations  will,  it  is  hoped,  enable  us 
to  see  more  clearly  the  fallacy  of  Mr.  Dagge's  views. 
Though  he  declares  the  doctrine  of  Hobbes  to  be  a  baneful 


on 


OF  MAN  IN  A  STATE  OF  NATURE.  [Lect-  H- 


one,  he  in  reality  very  nearly  coincides  with  him.      After 
endeavouring  to  impugn  the  views  of  Grotius,  Puffer. dorf 
and  Montesquieu  on  this  subject,  he  contends  that,  as  they 
consider  only  the  general  nature  of  mankind,  their  argu- 
ment is  no  way  decisive  of  the  question  in  controversy!  a 
conclusion,  by  the   by,  the   very  reverse  of  what  we   sup- 
pose most   men    would   draw.     'But  admitting,'  says    Mr. 
Dagge,  'the  greater  part  of  mankind  to  be  social  and  pacific, 
yet  it  will  not  therefore  follow  that  a  state  of  nature  is  not 
rather  a  state  of  war  than  of  peace.      The  selfish   passions 
of  a  few  would  not,  it  is  true,  involve  the  whole  species 
simul  etc  semel  in  a  state  of  war;    but  these  selfish  affec- 
tions will  operate  so  fatally,  that  all,  in  their  turns,  will 
feel  their  direful  effects,  and  the  most  mild  and  pacific  will 
vicissim  be  involved  in  hostilities,  even  in  their  own  de- 
fence.    The  seeds  of  contention  are  inherent  in  our  nature; 
consequently,  as  occasions  of  disagreement  increase,  hos- 
tilities will  multiply.'      'Again,'  says  this  author,  'if  by  a 
natural  state  we  mean  such  a  state  as  is  most  consentaneous 
to  man  abstractedly,  men  would   be,  in  such  a  state,  rather 
inclined  to  peace;  but  if  we  speak  of  a  natural  state,  as  con- 
tradistinguished from  a  social   or  civil   state,  it  appears   to 
be   rather  a  state   of  war,  though  the   members  of  such  a 
state  may  not  continually  be  at  enmity,  or  waging  war.' 

We  have  now  stated  to  you  very  fully,  from  Mr.  Dagge's 
work,  all  that  is  necessary  to  possess  you  of  his  peculiar 
views  and  distinctions;  and  we  cannot  help  regarding  them 
as  disingenuous  and  sophistical  throughout.  The  question 
for  solution  really  is,  whether  man  is  by  nature  a  being  in- 
clined to  associate  with  his  species,  and  to  live  in  peaceful 
communion,  or  is  one  whose  dispositions  lead  him  to  prey 
upon  his  kind,  and  to  domineer  over  those  whose  physical 
and  mental  inferiority  renders  them  unable  to  protect  them- 
selves. The  point  is  one  which  regards  the  character  of 
the  speeies  only,  and  not  merely  the  vices  or  the  virtues  of 


Lect.  II.]  OP  MAN  IN  A  STATE  OP  NATURE.  97 

the  few,  to  which  Mr.  Dagge,  by  a  strange  departure  from 
the  real  point,  would  seem  to  restrict  it.  The  general 
and  pervading  character  of  mankind,  therefore,  must  be 
decisive  of  the  question,  and,  consequently,  the  fault  found 
by  Mr.  Dagge,  with  Grotius,  PufFendorf  and  Montesquieu, 
in  having  rested  their  opinion  on  the  acknowledged  pacific 
character  of  the  species,  so  far  from  being  a  fault,  or  inde- 
cisive of  the  merits  of  the  question,  is,  according  to  our 
apprehension  of  it,  the  only  solution  of  which  it  is  suscepti- 
ble, and  the  only  point,  in  fact,  worth  contending  about. 
Our  author's  concession  of  the  general  pacific  nature  of 
man,  appears  to  us  an  abandonment  of  every  compre- 
hensible ground  on  which  he  and  Hobbes  would  rest 
their  argument;  and  the  distinction  taken  by  the  former, 
viz:  that  if  by  the  state  of  nature  is  meant  that  which  is 
the  'most  consentaneous  to  man  abstractly,  it  is  a  state  of 
peace;'  but  if  it  mean  'the  condition  of  men  while  they 
retain  their  natural  liberty,  and  are  without  government 
and  laws,  it  must  be  a  state  of  war;'  appears  to  us  wholly 
destitute  of  foundation  and  utility.  If  Mr.  Dagge  be  at  a 
loss  to  'conceive  how  such  a  state  can  be  one  of  peace,' 
might  he  not  have  been  equally  at  a  loss  how  to  conceive  it 
a  state  of  war?  By  status  or  state,  as  applied  to  the  pre- 
sent subject,  we  surely  do  not  mean  an  occasional  condition, 
but  a  preponderating  one,  flowing  from  a  general  operating 
principle.  How,  then,  men  in  general  can  be  admitted  to 
be  pacifically  inclined,  and  yet  the  natural  condition  of 
man  be  that  of  hostility,  we  confess  we  are  at  a  loss  to  com- 
prehend. It  is  obvious  that  Mr.  Dagge  has  mistaken  the 
real  point  of  controversy;  or  has  confounded  the  partial 
causes  of  occasional  hostility,  with  general  or  pervading 
principles,  which  would  induce  the  status  about  which 
alone  is  the  controversy  at  all  concerned.  This  was  un- 
questionably the  meaning  of  Mr.  Hobbes;  so  his  opponents 
have  ever  understood  him:  for  if  by  a  state  of  peace,  or  a 
13 


98 


OF  MAN  IN  A  STATE  OP  NATURE.  [Lect.  II 


state  of  war,  we  mean  one  never  interrupted  by  any  con- 
tentions in  the  one  case,  nor  by  any  friendships  in  the  other, 
undoubtedly  the  state  of  nature  can  never,  (as  we  have 
shown  from  the  mixed  character  of  man)  be  either  a  state 
of  peace  or  of  war.  But  if,  on  the  other  hand,  we  mean  by 
the  inquiry,  nothing  more  than  to  ascertain  whether  the 
dispositions  of  mankind  are  more  generally  hostile  than 
peaceful,  we  conceive  that  the  daily  contemplation  of  man 
even  in  his  rudest  condition,  and  the  tenor  of  his  whole  his- 
tory, will  justify  the  conclusion  that  he  is  naturally  dispo- 
sed for  society,  the  love  of  his  species,  and  the  cultivation 
of  the  blessings  of  peace;  and  that  the  numerous  contests 
and  wars,  both  private  and  publick,  which  figure  so  largely 
in  the  history  of  our  species,  no  more  prove  the  natural 
proclivity  of  our  race  to  war,  or  that  our  natural  state  is  that 
of  enmity  against  one  another,  than  do  the  occasional  mise- 
ries of  man,  his  diseases,  or  his  too  frequent  manifestation 
of  bad  passions,  prove  his  natural  state  to  be  wretched,  or 
full  of  physical  disease,  or  moral  evil.  There  is,  we 
know,  too  much  of  all  these  evils;  but  these,  we  appre- 
hend, are  his  unnatural  and  partial  states;  we  know  how 
they  have  been  superinduced,  and  no  one  ventures  to  as- 
sert, and  none  can  believe,  that  our  natural  condition  is 
other,  generally,  than  that  of  happiness  within  our  con- 
trol, health  within  our  means  of  enjoyment,  and  virtue 
at  our  option:  and,  finally,  that  if  the  vices  have  too  often 
triumphed  over  the  virtues,  still  man  does  not  find  his 
natural  condition  among  the  former. 

Again,  (if  we  are  not  pressing  this  topick  too  far)  we 
may  place  it  in  yet  another  light.  The  enjoyment  of  soci- 
ety, the  acquisition  of  property,  and  the  cultivation  of  the 
understanding,  being  the  primary  objects  of  mankind,  they 
can  have  no  general  dispositions  inconsistent  with  the  ob- 
tainment  of  these,  although  their  vices  and  their  ignorance 
may  sometimes  interfere  with  the  pursuit  of  these  goods. 


Lect.  II.]  OP  MAN  IN  A  STATE  OP  NATURE.  99 

It  must  be  allowed,  then,  that  the  views  of  mankind  being, 
in  the  main,  directed  towards  these  ends,  their  conduct  will 
be  shaped,  in  the  main,  by  the  principles  best  adapted   to 
insure  them.      It  is  folly,  therefore,  to  imagine  that  man, 
who  desires  the  society  of  his  fellows,  who  is  anxious  to 
reap  in  security  the  fruits  of  the  earth,  and  to  receive  the 
products  of  his  labour,  and  who  loves  both  to  communicate 
and  to  receive  the  results  of  observation  and  experience,  is 
naturally  prompt  to  that  state,  which,  of  all  others,  would 
most  effectually  defeat  the  whole  of  these  ends.     His  case 
is  entirely  different  from  that  of  solitary  and  predatory  ani- 
mals, (and  even  these  war  not  on  their  own  species  habi- 
tually) whose  enjoyment  is  retired,  who  have  no  thoughts 
to  communicate,  and  who  cultivate  no  fields  with  a  view  to 
bring  their  fruits  to  maturity.     Men  do  not  argue  from  a 
few  contentions   among  beavers,  that  they  are   hostile  to 
each  other,  when  they  find  them  constantly  associating,  com- 
bining their  labours  for  a  common  end,  and  then  enjoying 
their  results  generally  in  peace  and  system.     If  we  refer 
even  to  the  innumerable  contests  of  the  most  savage  tribes, 
we  shall  find  a  confirmation  of  these  principles;  since  we 
never   heard    yet  of  a  war  undertaken  for  the  pleasures 
which  it  bestowed,  but  rather  for  the  protection  or  revenge 
of  invaded  rights,  and  only  sometimes  with  the  view  of 
plunder.      No  argument  can  be  stronger  than  this,  to  prove 
the  natural  sentiments  of  mankind  on  this  point,  and  that 
the  species  cannot  be  justly  charged  with  the  wicked  desire 
of  waging  war  merely  for  each  other's  subjugation  or  des- 
truction.    Again,  if  it  has  been  urged  on  the  one  hand,  that 
the    necessity    under    which    men    found    themselves   of 
leaguing  together  in  societies  for  the  preservation  of  peace, 
is  an  argument  that  the  state  of  nature  was  one  of  war,  since 
otherwise  there  had  been  no    necessity  for  such  combina- 
tions for  mutual  protection;  it  may  be  replied  with  equal 
justice  on  the  other  hand,  that  had  not  their  dispositions 


100  07  MAN  IN  A  STATE  OP  NATURE.  [Lect.  U. 

been  really  pacifick;  had  not  peace  been  greatly  preferred, 
and  been  their  real  object  and  delight;  they  would  not  have 
resorted  so  universally  and  steadily  to  these  pacific  associa- 
tions: to  say  nothing  of  the  numerous  other  ends,  besides 
mere  protection,  which  were  answered  and  promoted  by 
civil  societies.  In  short,  if  the  notion  that  this  state  is  one 
of  war,  mean  any  thing  more  than  that  the  peaceable  ten- 
dencies of  mankind  were  often  interrupted  by  contentions, 
(a  point  never  denied)  it  must  seem  a  paradox  that  men 
should  rush  to  civick  associations,  in  order  to  avoid  that 
which  their  nature  coveted,  and  to  control  the  very  dispo- 
sitions in  which  they  were  the  most  prone  to  indulge.  It 
seems,  therefore,  very  clear  that,  unless  the  tempers  of  the 
majority,  and  a  considerable  majority  too,  had  been  paci- 
fick, the  lawless  and  violent  inclinations  contended  for  by 
Mr.  Hobbes  and  others,  would  for  ever  have  sundered 
mankind,  or  brought  them  into  no  closer  combination  than 
is  necessary  among  hordes  of  banditti.  We  have  consider- 
ed this  subject  more,  in  detail  than  some  may  think  neces- 
sary; but  it  is  not  without  its  practical  uses,  and  in  an  out- 
line of  ethical  and  political  law,  a  controversy  of  so  much 
celebrity  could  neither  be  omitted,  nor  slightly  passed 
over.  From  what  has  been  said  on  this  point,  you  will  no 
doubt,  agree  with  Plutarch,  that  'man  is  by  nature  neither 
a  savage  nor  an  unsocial  creature,  and  that  when  he  be- 
comes so,  it  is  by  vices  contrary  to  his  nature;'*  and  also 
with  Vattel,  that  'man  necessarily  stands  in  need  of  crea- 
tures like  himself,  to  preserve  and  perfect  his  own  being.'t 

(6.)  of  the  incon-  That  the  state  of  nature,  had  it  ever 
veniences  and  mise-  exigted  wou]d  haye  been  productive  of 
ries   of  the  state  ot  J 

nature  infinite  wretchedness,  and  have  speedily 

tumbled   into  confusion,   is  extremely   obvious    from   our 

knowledge  of  human  nature.     Whatever  the  pacific  dispo- 

A  Lang.  Plut.  'Pompey.'  f  Vattel,  ii.  5. 


Lect.  II.]  OP  MAN  TN  A  STATE  OF  NATURE.  101 

sitions  of  the  many,  the  few  would  frequently  have  plunged 
them  into  discord:  whatever  their  desires  after  utility  and 
enjoyment,  the  wrong  judgments  of  some  vigorous  indivi- 
duals would  frequently  have  interfered  to  thwart  their  pro- 
gression towards  it;  for  as  the  universal  concord  of  men 
would  have  been  necessary  for  either  of  these,  so,  unhappi- 
ly, the  dissent  of  a  few  would  have  been  enough  to  mar, 
and  sometimes  to  destroy  them.  Men,  therefore,  would 
speedily  find  the  necessity  of  society,  and  its  advantages 
would  continue  to  ensure  its  endurance.  The  inconveni- 
ences of  the  state  of  nature  can  be  well  imagined,  and  need 
not  be  further  remarked  on;  they  appear  in  high  relief 
when  contrasted  with  the  blessings  secured  to  us  by  society 
and  laws. 

Before  we  proceed  to  trace  the  origin  and  various  mo- 
tives, actual  and  imaginary,  which  gave  rise  to  society  and 
government,  we  propose  to  direct  your  attention  to  the 
rights  which  appertain  to  the  state  of  nature,  which  we  have 
just  considered;  and  these  natural  rights  will  form  the  sub- 
ject of  the  ensuing  lecture. 


LECTURE  III. 


OP  THE  RIGHTS  OP  NATURE- 


We  are  now  to  speak  of  those  rights  which  belong  in  a 
state  of  nature  to  every  human  being;  which  appertain  to 
man  for  his  preservation  or  happiness;  and  which  are  so 
essential  to  his  well-being,  that  they  may  be  said  to  belong 
scarcely  more  to  man  than  to  all  God's  animated  creation. 
These  rights  remain  with  us  in  society,  where  they  are  so 
guarded  and  modified  as  to  produce  the  greatest  happiness, 
by  averting  the  evils  to  which  we  were  liable  in  a  state 
of  nature,  from  their  unrestrained  and  injudicious  use. 
The  rights  of  nature,  in  common  with  all  others,  regard 
either  a  man's  person  or  his  property;  for  even  in  a  state 
of  nature,  property  may  be  acquired;  and  in  that  state  the 
inviolability  of  person  was  as  essential,  and  as  much  a 
right,  as  it  now  is  in  civil  society. 

Before  we  proceed  to  examine  the  various  rights  of  na- 
ture, it  is  proper  that  we  should  have  a  clear  understand- 
ing of  the  true  import  of  the  word  Right. 

(10  Various  mean-  There  are  fevv  vvords  in  any  language 
ings  of    the    word  which    have   been    more  variously  used 

lg    '  and  defined   than  this  word.     It  appears 

in  the  form  of  substantive,  adjective  and  adverb,  and  is 
supposed  to  have  not  less  than  forty  meanings.  We  shall 
note  a  few  of  them,  and  endeavour  to  bring  within  a  small 
compass  the  substance  of  what  may  be  found  repeated  in  a 


Lect.  HI]  OP  THE  RIGHTS  OF  NATURE.  103 

variety  of  forms,  perhaps  in  every  volume,  ancient  and 
modern,  which  treats  of  morals,  law,  divinity,  metaphy- 
sicks,  or  even  criticism;  each  author,  without  fail,  taking 
up  and  explaining  this  word  Right.  Our  notice  of  it, 
therefore,  is  merely  to  afford  the  student  a  foretaste,  and 
by  no  means  to  philosophize  extensively  on  it,  since  per- 
haps, after  all,  every  man  understands  its  import  nearly  as 
well  intuitively,  as  it  were,  as  he  does  after  even  the  most 
critical  examination  of  its  etvmons  and  meanings. 

1.  The  word   Right  is   sometimes  used  to  signify  law. 
When  we  say,  for  instance,  that  natural  right  requires  us 

to  keep  our  promise,  to  restore  what  we  have  purloined,  or 
to  refrain  from  murder,  we  mean  natural  justice,  the  natu- 
ral fitness  of  things,  or,  in  other  words,  natural  law.  It 
was  used  in  like  manner  among  the  Romans,  who  re- 
cognize this  in  their  word  jus,  which  signifies,  not  only 
right,  but  law:  thus  they  say  jus  gentium,  or  law  of  na- 
tions; while  the  same  word,  in  other  cases,  imports  the 
same  as  our  word  Right;  as  in  the  phrase,  jura  personarum, 
the  rights  of  persons. 

2.  The  word  Right  sometimes  means  that  quality  of 
our  actions  by  which  they  are  denominated  just  or  lawful- 
though  it  is  more  usual,  when  this  is  our  meaning,  to  say  the 
rectitude  of  our  actions.  The  moral  rectitude  or  Tight- 
ness of  an  action  is  its  conformity  and  consistency  with 
moral  rules,  whether  natural  or  positive:  we  say  conformi- 
ty and  consistency,  for  it  is  justly  remarked  by  Grotius, 
that  not  only  such  actions  as  are  conformable  to  what  the 
law  commands,  but  likewise  such  as  are  consistent  with  it, 
and  not  forbidden  by  it,  have  right  or  rectitude;  for  it  is 
plain  that  all  actions  are  lawful  which  the  law  does  not  for- 
bid. In  short,  right  or  rectitude,  in  this  second  case, 
means  the  quality  of  being  conformable  to,  and  consistent 
with  law. 


104  OF    THE  HIGHTS  OP  NATURE.  [Lect.  Ill 

$.  The  next  sense  in  which  this  word  has  been  used,  is 
that  which  we  attach  to  it  when  we  speak  of  the  rights 
which  wo  enjoy  either  in  a  state  of  nature,  or  in  society. 
It  is  then  not  a  quality  of  actions,  as  in  the  preceding  case, 
but  of  persons,  which  makes  it  just  or  right  for  them  ei- 
ther to  possess  certain  things, or  to  do  certain  actions:  thus  we 
say  a  man  has  a  right  to  liberty,  to  reputation,  to  his  pro- 
perty, to  defend  himself,  &c.  &c,  and  in  all  these  cases, 
whether  the  word  right  means  law,  or  a  quality  of  our  actions, 
or  a  quality  of  persons,  it  still  imports  that  something  is  se- 
cured to  us  or  our  actions,  by  reason  of  an  agreement  or 
harmony  subsisting  between  us  or  our  actions,  and  some- 
thing which  is  superior  to  both,  and  which  is  competent  to 
ordain  the  necessity  of  such  agreement.  In  the  following 
sentence  you  have  an  example  of  the  word  rigbt,  when  used 
in  the  three  modes  we  have  just  mentioned.  'Natural 
right  (law)  imputes  no  want  of  right  (rectitude  or 
rightness)  to  actions,  in  doing  which  a  man  only  exer- 
cises his  proper  rights;  which  might  again  be  paraphrased 
thus:  The  fitness  of  things  docs  not  permit  us  to  impute 
a  icant  of  rectitude  to  him,  who  only  exercises  the  jjri- 
vileges  allowed  him  by  nature  or  law. 

4  The  word  right  is  also  frequently  used  adjectively; 
thus  we  say,  'it  is  right  for  him  to  vindicate  himself;'  mean- 
ing that  it  is  just,  that  it  is  conformable  to  reason,  or  to 
some  law.  So,  also,  we  say,  'he  is  in  the  right',  or  'he  is 
right.'  By  the  first  of  these  we  mean  that  his  opinion  or 
conduct  conforms  to  truth,  justice,  law,  &c;  by  the  second, 
that  in  what  he  has  done,  said  or  thought,  he  is  conforma- 
ble to  truth  &c.  We  presume  that  the  foregoing  modes  of 
using  the  word  right  will  embrace  every  case  of  any  inter- 
est, at  least  to  the  student  of  law. 

Right  is  expressed  in  French  by  the  word  droit,  and  sig- 
nifies straight  or  direct.  It  is  said  to  be  derived  from1  the 
Latin  dirigo,  which  implies  to  conduct  a  person  to  some 


Lect.  III.]  OF  THE   RIGHTS   OF  NATURE.  105 

certain  end,  by  the  shortest  possible  road.  Hence,  also,  the 
word  Rule,  which  signifies  a  straight  line  drawn  from  one 
point  to  another:  so  that  the  words  right,  rule,  law,  droit, 
are  synonymous.  In  Latin,  as  we  have  said,  it  is  expres- 
sed by  the  word  jus,  which  signifies  also  a  law.  So  in  our 
language,  as  in  the  French,  we  say  'a  right  line,'  meaning 
a  straight  line,  for  it  is  a  law  of  that  line  to  be  the  shortest 
and  most  direct  line  which  can  be  drawn  from  any  given 
point  to  another.  The  word  Right  is  also  supposed  to  be 
derived  from  the  past  participle,  rectum,  from  regere,  and 
imports  an  order;  so  that  when  a  man  demands  his  right, 
he  only  asks  that  which  it  is  ordered  he  shall  have.  Thus, 
says  the  learned  author  of  the  Diversions  of  Purley,  'a. 
right  conduct — right  reckoning — right  line — right  road — a 
right  action — to  do  right — to  have  right  on  one's  side — to 
be  in  the  right,  &c  mean  nothing  more  than  that  those 
things  have  been  ordered,  or  laid  down.* 

In  this  acceptation,  all  rights  consist  of  powers  vested  in 
us  bv  some  order  flowing  from  a  source  competent  to  grant 
it,  which  may  be  either  divine  or  human. 

Whether  the  word  Right  is  used  adjectively  or  adverbi- 
ally, it  results  in  the  same  thing.  Thus  when  we  say  a  right 
road,  we  mean  that  which  is  ordered  or  directed  by  reason 
to  be  pursued  by  us,  if  we  would  attain  the  object  we  have  in 
view;  and  so  of  a  right  line,  right  reckoning,  &c.  So  if 
we  say  it  is  rightly  done,  we  mean  that  it  was  done  accord- 
ing to  the  order  given,  whether  it  be  dictated  by  reason, 
by  law,  &c. 

Right,  then,  is  defined  by  Puffendorf  to  be  'that  moral 
quality  by  which  we  justly  obtain  the  government  of  per- 
sons, or  the  possession  of  things;  or  by  force  whereof  we 
may  claim  somewhat  as  due  to  us.'  The  claim  must  be 
wholly  just,  or  straight;  it  must  conform  to  some  order, 

*  Diver,  of  Pur.  vol.  i.  7. 
14 


106  OF  THE  RIGHTS  OF    NATURE.  [Lect.  ID 

rule  or  law;  for  if  there  be  any  deflexion  from  the  right 
line  of  the  law,  it  is  not  a  right,  but  an  unjust  pretension. 
This  is  substantially  the  same  definition  as  that  given  by 
Grotius;  but  Rutherforth  finds  fault  with  it,  and  says  that  in- 
stead of  describing  the  quality  itself,  he  has  only  described 
the  effect  of  it.  'Grotius,'  says  Rutherforth,  'only  tells  us 
that  it  makes  a  man's  actions  or  possessions  just,  but  the 
inquiry  still  is,  what  makes  these  things  just?'  We  reply, 
their  consistency  with  law.  We  would,  therefore,  define 
Right  to  be  the  power  of  doing  an  action,  or  possessing  a 
thing,  consistently  with  the  natural  or  civil  law,  or  both. 
Natural  rights,  consequently,  are  the  powers  of  doing,  and 
of  having,  consistently  with  the  law  of  nature;  as  civil 
rights  are  the  powers  of  doing  and  having  consistently  with 
the  Civil  law,  and  the  ends  of  the  civil  union.  From  these 
definitions  it  appears  that  rights  are  moral,  not  physical 
powers;  or,  in  other  words,  we  must  distinguish  Right 
from  mere  power.  A  simple  power  is  the  faculty  of  acting 
up  to  the  measure  of  our  strength  or  liberty;  but  Right  is 
something  more;  it  is,  in  fact,  this  simple,  natural  power, 
guided  by  a  moral  rule,  which  leads  it  directly  to  a  certain 
end.  When,  for  example,  it  is  viewed  in  relation  to  a  state 
of  nature,  it  is  indeed  a  power,  but  it  is  confined  by  the 
natural  law,  which  is  nothing  in  itself  but  the  rules  of  gene- 
ral utility  adapted  to  the  state  of  nature,  and  ascertained  by 
conscience,  reason,  experience  &c.  so  that  we  may  again 
describe  natural  rights  to  be  our  natural  powers  of  acting 
and  possessing,  directed  and  limited  by  the  rules  or  princi- 
ples of  utility;  which  is  clearly  very  different  from  mere 
natural  power,  that  importing  nothing  more  than  physical 
strength,  or  the  doing  and  possessing  whatever  our  pow- 
ers will  enable  us  to  do,  without  any  regard  to  reason,  con- 
science or  law.  It  is  manifest  that  such  a  power  can  never  be 
a  right,  and  cannot  be  claimed  even  by  the  gods,  much  less 
by  men;  and,  with  reverence  be  it  said,  even  Deity  has  his 


Lect.  III.]  OF  THE  RIGHTS  OF  NATURE.  107 

own  laws,  and  his  omnipotence  is  no  way  impugned  there- 
by. It  is  true  that  power  is  sometimes  ranked  among 
moral  qualities;  but  it  is  only  when  it  bears  a  particular 
sense,  which  is  in  reality  the  same  with  that  of  Right,  as  it 
has  been  just  explained.  Thus,  for  example,  we  say  pater- 
nal power,  and  mean  paternal  right:  so,  also,  we  say  a  pow- 
er over  one's  estate,  and  mean  a  right  over  the  estate.  Puf- 
fendorf,  remarking  on  this  confusion  of  terms,  says,  'the 
word  right,  tx  vi  termini,  shows  that  the  faculty  was  pro- 
perly got,  and  properly  possessed,'*  which  distinguishes  it 
from  mere  power. 

As  natural  rights  are  all  those  powers  which  are 
left  unrestrained,  except  by  the  law  of  nature,  and  as 
this  law  is  founded  on  utility,  we  may  say  that  natural 
rights  consist  in  the  liberty  of  doing  and  possessing  every 
thing  not  forbidden  by  rules  drawn  from  general  utility. 
Our  individual  rights  are  ascertained,  in  all  states  of  so- 
ciety, by  an  appeal  to  the  general  utility.  In  civil  commu- 
nities, that  utility  is  settled  by  the  general  thought,  and  is 
usually  expressed  in  positive  enactments:  in  a  state  of  na- 
ture it  may  be  drawn,  indeed,  from  general  thought,  but  is 
commanded  only  by  the  conscience  and  reason  of  each  indi- 
vidual. 

(2.)    Division    of       Rights  are  susceptible  of  several  divi- 
riShts-  sions,  and  they  have  been  divided  in  the 

first  place,  into  perfect  and  imperfect.  Barbeyrac,  in 
his  annotations  on  GrotTus,  defines  a  perfect  right  to  be 
'one  which  we  may  assert  by  force,  and  the  violation  of 
which  is  a  wrong  properly  so  called,  whence  it  is  easy  to 
judge  what  an  imperfect  right  is.'  Puffendorf,  when  speak- 
ing of  power,  which  he  uses  in  that  passage  as  synony- 
mous with  right,  says  that  it  is  divided  into  perfect  and  im- 
perfect; 'the  former  is  that,  the  exercise  of  which  may  be 
asserted  even  by  force  against  those  who  endeavour  to  op- 

*Puff.  L-  M.  and  N.  book  1,  ch.  1,  sec.  20. 


108  OP  THE  RIGHTS  OP  NATURE.  [Lect.  III. 

pose  it;  the  latter  is  that,  the  exercise  of  which  if  any  man 
is  prohibited,  he  may  be  said,  indeed,  to  be  unkindly  dealt 
with,  yet  he  has  no  right  to  defend  it  by  force.' 

Bui  on  these  definitions  Rutherforth  has  observed,  that 
such  an  explanation  would  only  lead  an  inquirer  to  another 
question,  viz.  what  rights  may  be  thus  asserted  by  force? 
It  is  therefore  the  object  of  that  very  acute  commentator 
upon  Grotius,  to  seek  some  further  and  better  distinction 
between  these  two  species  of  right,  than  that  which  makes 
the  criterion  of  difference  to  consist  merely  in  the  one 
being  assertable  by  force,  the  other  not.  The  first  dif- 
ference which  he  suggests  between  perfect  and  imperfect 
rights,  is  the  fixedness  or  determinateness  of  the  thiiigs 
to  which  we  have  a  perfect  right,  or  of  the  actions  which 
we  have  a  like  right  to  perform;  and,  on  the  other  hand, 
the  vagueness  or  indelcrminuleness  of  those  to  which  we 
have  only  an  imperfect  right.  *  If,  for  example,  a  man 
should  demand  his  own  property,  the  right  which  supports 
that  demand  is,  or  may  be,  fixed  and  determinate.  But  if  a 
poor  man  seeks  relief  from  those  from  whom  he  has  even 
good  and  strong  reason  to  ask  it,  the  right  which  supports 
his  request  is  an  imperfect  one;  for  its  extent  is  wholly 
vague  and  undefined.  The  second  distinction  relied  upon 
by  Rutherforth  is,  that  where  no  taw  restrains  a  man  from 
carrying  his  right  into  actual  execution,  it  is  a  perfect 
one;  but  if  the  law  in  any  respect  restrains  him  from  such 
execution  of  it,  the  right  is  then  imperfect:  or,  in  other 
words,  our  rights  are  perfect  when  we  can  assert  them  with- 
out disturbing  the  rights  of  other  men;  and  imperfect  when 
the  rights  of  others  stand  in  the  way  of  those  claimed  by 
us.  Thus,  for  example,  the  defence  of  life  is  a  perfect 
right  against  those  who  have  no  right  to  take  it  away;  but 
benevolence  or  alms  is  an  imperfect  right,  because  I  cannot 

]  Ruth.  Inst.  43. 


Lect.  III.]  OF  THE  RIGHTS  OF  NATURE.  109 

coerce  them,  as  this  would  be  to  infringe  on  the  rights  of 
property  in  others.  A  perfect  right,  in  fine,  according  to 
Rutherforth,  consists  partly  in  its  certainty,  and  partly  in 
the  privilege,  of  demanding  its  exercise,  because  no  law, 
or  rights  of  others,  would  be  thereby  infracted. 

If,  however,  we  examine  this  view  of  the  subject  a  little 
closely,  we  shall  perceive  that  this  able  commentator  has 
not  evinced  his  usual  acuteness,  and  that,  after  all,  he  has 
failed  to  establish  the  distinction  at  which  he  aims,  as  both 
of  his  criterions  may  be  resolved  into  those  very  distinc- 
tions which  he  deems  insufficient  when  stated  by  Barbey- 
rac  and  Puffendorf.  If  the  perfectness  of  a  right  depend, 
in  part,  on  there  being  no  law  to  prevent  its  execution, 
then  certainly  we  may  effectuate  our  right,  as  Barbeyrac 
says,  by  force;  for  if  there  is  no  law  to  prevent  its  execu- 
tion, there  is  no  stopping  point;  and  if  we  can  execute  it 
at  all,  we  may  do  it  by  fair  or  by  forcible  means.  By  de- 
duction, therefore,  from  Rutherforth's  own  premises,  Bar- 
beyrac and  Puffendorf  would  seem  to  be  right  in  making 
the  just  use  of  force  the  criterion  of  perfect  rights;  for  Ru- 
therforth, thus  far,  has  done  nothing  more  than  expand  the 
doctrine  that  the  right  to  maintain  it  by  force  is  the  test  of 
a  perfect  right,  by  his  showing  the  reason  why  force  may 
be  applied,  viz.  the  absence   of  any  restraining  law. 

Again:  If  we  take  the  second  clause  of  his  second  cri- 
terion, viz.  the  absence  or  interference  of  other  men's 
rights,  we  cannot  perceive  that  he  has  been  more  fortunate. 
To  call  a  right  merely  imperfect,  when  the  rights  of  others 
stand  in  the  way  of  it,  is,  we  think,  not  giving  it  its  real 
character;  it  can,  we  apprehend,  be  no  right  at  all;  and  so, 
on  the  other  hand,  the  capacity  to  be  carried  into  execu- 
tion without  interfering  with  the  rights  of  other  men,  is  a 
cpjality  essential  to  all  rights,  and  is  by  no  means  more  pe- 
culiar to  perfect,  than  to  imperfect  ones.  Rejecting,  how- 
ever, with  Rutherforth,  Barbeyrac's  criterion  of  force,  and 


HO  OF  THE  RIGHTS  OP  NATURE.  [Lect.  III. 

rejecting  also  the  former's  own  view,  which  makes  a  per- 
fect right  one  which  is  not  interfered  with  by  any  law,  or 
any  right  of  another,  since  this  differs  in  no  comprehensi- 
ble degree  from  that  of  Barbeyrac;  if  we  then  consider 
Rutherforth's  other  criterion,  viz.  its  fixedness  or  determi- 
nateness,  we  are  not  sure  that  even  this  will  be  found  meta- 
physically more  correct.  We  have  defined  a  right  to  be 
a  power  of  doing  an  action,  or  of  having  a  thing,  con- 
sistently with  law.  Now  as  all  rights  must,  be  consistent 
•with  law,  an  imperfect  right  seems  somewhat  unintelli- 
gible, since  it  must  then  be  something  imperfectly  consis- 
tent with  law!  But  as  there  are  no  degrees  in  consistency; 
as  there  is  no  middle  point  between  consistency  and  incon- 
sistency; this  quality  of  doing  or  having  must  be  either  con- 
sistent or  inconsistent  with  law:  if  it  be  the  latter,  it  is  not 
a  right  of  any  kind;  if  it  be  the  former,  it  is  then  simply  a 
right,  and  is  not  susceptible  of  degrees  of  perfectness.  So, 
likewise,  that  it  is  uncertain  to  what  I  have  a  right,  or,  in. 
other  words,  that  the  indeterminateness  of  the  object  of  the 
right,  should  affect  the  quality  of  the  right,  is  not  logical, 
as  it  appears  to  us.  A  man,  on  the  other  hand,  may  have  a 
very  certain  right  to  very  undefined  things,  as  to  a  claim 
for  damages,  or  to  an  estate  whose  boundaries  are  wholly 
undefined.  The  difficulty  in  such  case  would  be,  not  to 
make  the  object  certain,  in  order  to  originate  or  create  a 
perfect  right,  but  to  make  the  object  certain,  so  that  he  might 
enjoy  a  perfect  right  already  in  existence.  From  what  has 
been  said,  we  are  inclined  to  think  that  a  less  exceptionable 
term  than  imperfect  right  might  be  adopted,  when  we  speak 
of  a  right  to  any  indeterminate  thing. 

That  writers  on  natural  law  have  experienced  some  dif- 
ficulty in  assigning  rights  to  their  respective  classes,  under 
this  customary  division,  is  evident  from  various  instances 
which  might  be  cited.  By  some  the  same  right  has  been 
called  perfect,  which  others  call  imperfect;  and  rights  as- 


Lect.IlL]  OF   THE    RIGHTS   OP    NATURE.  Ill 

sertable  by  force,  have  been  classed  under  the  latter  head, 
whilst  some  not  assertable,  have  been  called   perfect.      If 
any  right  be  perfect,  we  apprehend  it  is  the  right  of  pro- 
perty; because  the  boundaries  of  it  are  very  definable,  and 
it  is  capable  of  the  most  complete  identification.      Hence, 
among  individuals  in  a  state  of  nature,  the  infringement  of 
a  spot  they  have  cultivated,  and  among  nations  also,  (which 
are   considered   to   be   in   a  state   of  nature   towards  each 
other)  the   invasion  of  their  territory,  have  always   been 
justly  esteemed   among  the   highest   offences,  because   the 
right  is  one  of  the  highest,  and  is  unquestionably  perfect. 
And  though  another  individual  or  nation  might  design  to 
make  ever  so  innocent  a  profit  out  of  either,  the  permission 
to   do  so  from   the  owner  of  the  soil,  would   be   of  grace 
only,  according  to  the  received  notion  of  perfect  and  im- 
perfect rights.     Such  an  innocent  use  or  profit  would  come 
under   the   definition   of  mere   benevolence,   to   which   all 
agree  that  we  have  but  an  imperfect  right.      Yet  Grotius 
considers  the  right  of  drinking  of  a  river  running  through 
such  land  or  territory,  as  clearly  established;   and  so,  also, 
in  regard  to  a  passage  by  other  nations  through  national  do- 
minions, with  a  peaceable  disposition,  and  a  necessary  object, 
he  expressly  declares  that  it  may  be  obtained  by  force,  if 
denied  to  their  previous  request*    Yet  the  right  to  territo- 
rial dominions  is  perfect,  and,  on  the  other  hand,  the  right 
to  such  innocent  profit  or  passage  would  seem  to  be  clearly 
assignable  to  the  class  of  imperfect  rights.      The  solution 
of  this  difficulty  is  perhaps  to  be  found  by  adverting  par- 
ticularly to  the  nature  and  origin  of  national  property  or 
dominion.       If  we   suppose   that   national  property  origi- 
nated from  occupancy  in  gross;   that  all   nations  are  to  be 
considered   in  reference   to  each  other,  as  individuals   in  a 
state  of  nature;  and  that  when  nations  became  possessed  of 

*  Grotius,  lib.  2.  ch.  2,  sec.  13. 


112  OP    THE    RIGHTS    OF    NATURE.  [Lect.  Ill 

dominion  by  this  general  occupancy,  there  was  at  the  same 
time  an  implied  reservation  to  all  nations  of  this  right  of 
passage;  then  the  two  rights  may  both  be  perfect,  and  in 
no  way  clash  with  each  other.  They  are  to  be  exercised 
at  different  times,  or  for  different  purposes;  they  are  rights 
reserved  in  the  same  property  dtverso  intuitu;  and  hence 
there  is  no  inconsistency  in  according  to  a  nation  all  the 
perfect  rights  which  belong  to  property,  and,  at  the  same 
time,  to  all  other  nations  the  right  of  passage,  which,  in 
this  point  of  view,  is  also  a  perfect  right,  and  is,  to  this 
extent,  what  the  civilians  call  a  limitation,  praedial  service, 
or  easement. 

Vattel  who  speaks,  as  well  as  Grotius,  concerning  the 
right  of  passage  of  a  nation,  that  is,  of  its  troops,  through 
the  territories  of  another,  comes  in  effect  to  the  same  con- 
clusion; but  his  reasoning  shows  how  uncertain  is  tire  no- 
tion of  some  as  to  the  distinction  between  perfect  and  im- 
perfect rights.  lie  says  that  an  innocent  passage  is  due  to  all 
nations;  but  that  the  sovereign  of  the  nation  of  whom  it  is 
asked,  is  to  judge  whether  it  be  innocent.  In  all  doubt- 
ful cases,  he  says,  the  judgment  of  the  proprietor  is  to  be 
referred  to,  and  to  be  observed,  though  possibly  unjust; 
but  yet,  if  the  passage  be  unquestionably  innocent,  the  na- 
tion which  is  denied  it,  may  assert  its  right  by  force. 
Here  appears  to  be  confusion,  or,  at  least,  vague  notions 
throughout;  a  strange  mixture  of  the  qualities  ascribed  to 
perfect  and  imperfect  rights.  First  it  is  a  right;  then  its 
exercise  is  to  be  referred  to  the  judgment  of  the  nation 
from  whom  it  is  demanded;  if  the  matter  be  doubtful,  the  de- 
nial must  be  respected;  then, if  it  be  clearly  unjust  to  deny 
it,  the  judgment  of  denial  may  be  disregarded,  and  the 
claim  be  vindicated  by  force.  But  it  may  be  here  asked, 
who  is  to  judge  of  its  being  doubtful  or  certain?  If  the 
nation  of  whom  the  right  is  asked,  be  the  sole  judge  in 
doubtful  cases,  who  is  to  form   the  previous  judgment, 


Lett.  III. J  OF    THE    RIGHTS    OF    NATURE.  113 

whether  the  same  be  doubtful  or  not?  If  this  judgment  be- 
longs to  the  nation  of  whom  the  right  is  asked,  it  is  clearly 
an  imperfect  right;  and  if  it  belongs  to  the  other,  it  would 
seem  to  be  perfect.  If  it  be  a  perfect  right,  as  we  may 
infer  it  is,  from  its  being  demandable  in  the  last  resort  by 
force,  then  there  is  no  necessity  for  craving  the  permission 
of  the  sovereign;  and  if  we  suppose  it  imperfect,  then  we 
cannot,  under  any  circumstances,  maintain  it  by  force. 
This  example  of  the  uncertainty  arising  from  the  use  of 
these  terms,  concerns  nations;  but  it  is  equally  applicable 
to  individuals,  and  has  been  mentioned  only  to  illustrate 
the  difficulty  in  which  this  phraseology  often  involves 
writers  on  natural  law,  when  treating  on  this  division  of 
rights.  Perhaps  this  may  be  gotten  rid  of  by  going  on  a 
different  principle,  and  giving  new  names,  less  calculated 
to  mislead,  to  these  two  classes  of  rights;  and  this  may  be 
done,  though  we  retain  the  distinction  and  qualities  which 
are  now  made  to  characterize  them.  While  all  rights  are 
equally  rights,  they  are  not  equally  important  to  socie- 
ty; at  least  not  all  equally  assertable  and  determinate:  thus, 
for  example,  the  right  of  property  is  first  to  be  observed, 
because  it  has  been  found  to  be  most  essential  to  the  support 
of  society.  The  right  of  a  poor  man  to  relief  is  of  secon- 
dary consequence,  because  if  the  right  of  property  be 
strictly  observed,  there  will  be  few  occasions  for  its  ex- 
ercise. We  might,  therefore,  divide  rights  into  primary 
and  secondary.  We  might  call  them  so  with  equal  pro- 
priety, on  the  other  principle,  viz:  of  their  being  more  or 
less  determinate  or  assertable,  since  a  right  is  of  small  mo- 
ment, and  of  little  practical  service  to  an  individual  or  na- 
tion, which  cannot  be  defined  nor  asserted.  We  might, 
therefore,  call  them  also  determinate  or  primary,  and  inde- 
terminate or  secondary  rights.  In  conclusion  of  this  sub- 
ject; a  right  is  said  to  be  imperfect  because  its  measure  or 
exact  extent  is  undefined,  and  being  undefined,  it  cannot 
15 


114  OF    THE    RIGHTS    OF    NATURE.  [Lcct.  III. 

be  enforced.  It  is  nevertheless  a  right,  because  it  ought 
to  bind  the  conscience  of  him  from  whom  it  is  due.  Such 
a  right  is  perfectly  consistent  with  natural  law,  though  it 
is  not  allowed  to  be  enforced  lest  more  mischief  should 
flow  from  its  exaction  by  the  one,  than  from  its  unjust  re- 
tention by  the  other.  But  to  denominate  it  an  imperfect 
right  because  it  is  not  assertable  by  force,  appears  to  hold 
it  up  as  a  right  imperfectly  consistent  with  law,  since  a  per- 
fect right  is  one  which  is  perfectly  consistent  with  law,  as 
indeed  all  rights  must  be.  But  if  we  call  such  a  right  se- 
condary or  indeterminate,  we  admit  it  to  be  as  consistent 
with  law  as  a  perfect  right  is;  but  its  character  is  indicated 
by  the  terms  used,  which  show  its  undefined  and  inferior 
nature. 

The  word  right  imports,  ex  vi  termini,  a  correspondent 
duty  in  some  one  to  submit  fully,  or  sab  modo,  to  the 
claim;  hence  Obligation  and  Right  are  correlative  terms. 
Where  A  has  a  right  to  something  from  B,  the  latter  is 
under  an  obligation  to  render  that  something  to  the  former: 
and  as  Rights  have  been  divided  into  perfect  and  imperfect, 
their  correspondent  obligations  are  similarly  divided. 

Much  curious  learning,  and  many  subtile  distinctions 
are  to  be  found  in  the  books,  on  the  subject  of  obligation. 
To  separate  the  dross  from  the  ore  is  no  easy  task;  and  yet, 
as  the  fashion  of  the  day  is  for  students  very  generally  to 
shun  the  pages  of  Grotius,  Puffendorf,  Wolfius,  Hcincccius, 
Cumberland,  &c.  &.c.  and  even  Burlamaqui,  Rutherforth, 
and  such  more  inviting  authors,  it  appears  to  be  essential, 
in  such  preliminary  lectures  as  the  present,  that  we  should 
look  into  the  whole  of  these  writers,  and  present  to  you  a 
portion  of  their  great  and,  we  may  say,  estimable  labours. 
Rutherforlh,  in  commenting  upon  Grotius,  when  speaking 
ot  perfect  and  imperfect  obligations,  has  adopted  the  opi- 
nion that  these  several  kinds  of  obligation  may  be  distin- 
guished by  the  following  rule,  viz:  that  obligations  arising 


JLect.  Ill.j  OP    THE    RIGHTS    OP    NATURE.  115 

out  of  the  negative  precepts  01  the  law  are  perfect, — while 
those  which  arise  out  of  the  affirmative  precepts,  are  im- 
perfect* Thus,  for  example,  if  it  be  declared  to  us,  'thou 
shalt  do  no  murder,'  the  obligation  is  said  to  be  perfect, 
for  the  matter  of  this  negative  precept  is  precise  and  deter- 
minate, admitting  of  no  liberty  at  all:  but  if  the  command 
be,  'honour  the  aged' — 'respect  the  opinions  of  the  learned7 
— 'venerate  the  good'  &c.  the  obligations  would  be  imper- 
fect, because  by  these  affirmative  precepts  we  are  left  with 
some  discretion  of  acting,  and  of  measuring  out  what  we 
may  conceive  to  be  the  portion  of  honour,  respect  and  ve- 
neration due  to  these  persons.  On  this  rule  (plausible  as  it 
appears  to  be)  we  would  remark,  that  besides  what  we 
have  said  in  regard  to  the  use  of  the  terms  perfect  and  im- 
perfect, when  we  spoke  of  rights,  the  deriving  these  two 
classes  of  obligations  from  negative  and  affirmative  precepts 
of  the  law,  is  perhaps  equally  faulty,  and  more  sophisti- 
cal. The  rule,  we  think,  is  calculated  to  mislead,  for  though 
perfect  obligations  are  often  connected  with  negative  laws, 
yet  the  obligation,  after  all,  is  not  affected  by  the  phrase- 
ology, but  is  generally  wholly  independent  of  it.  Had  it, 
for  example,  been  affirmatively  enjoined  us,  'respect  life,' 
the  obligation  to  do  no  murder  would  have  been  equally 
perfect,  though  the  mode  of  expressing  the  legal  precept 
be  different.  So,  on  the  other  hand,  had  it  been  com- 
manded thus,  'thou  shalt  not  dishonour  the  aged,  disrespect 
the  opinions  of  the  learned,  despise  the  good,'  &c.  though 
the  obligation  is  perfect  in  this  case,  as  far  as  all  dishonour, 
irreverence  &c.  are  forbidden,  yet,  in  truth,  the  measure  of 
respect  which  is  due  in  these  cases  cannot  be  greater,  and 
perhaps  not  as  great  as  where  the  precept  is  affirmative ;  for 
such  precept  appears  not  only  to  exclude  all  dishonour  &c. 
but  to  require  something  positive,  viz:  actual  manifestations 

*  1  Ruth.  46. 


116  OF    THE    RIGHTS    OF    NATURE.  Leet.  III.] 

of  honour  &c.  Be  all  this,  however,  as  it  may,  we  cannot 
perceive  that  the  obligation  is  likely  to  be  more  efficient  in 
the  one  case,  than  in  the  other.  Hence,  all  that  can  be 
said  on  this  rule,  has  been  stated  by  Dr.  Paley,  viz:  that 
affirmative  precepts  of  law  commonly  produce  imperfect 
obligations.  Once  ascertain  with  precision  the  nature  of  an 
act,  and  the  character  of  the  obligation  is  easily  known, 
without  reference  to  the  language  in  which  the  prohibition 
may  be  clothed. 

We  cannot  forbear  adverting  at  this  time,  to  another  dis- 
tinction set  up  by  Rutherforth,  which,  as  it  rests  on  the 
premises  to  which  we  have  partly  objected,  appears  to  us 
to  partake,  in  like  degree,  of  their  error.  The  distinction 
to  which  we  allude,  is  this.  There  are,  says  he,  two  max- 
ims of  natural  law  often  injudiciously  applied,  and  which 
require  explanation.  The  first  is,  'that  no  right  can  be 
founded  on  an  injury;'  and  the  second,  'that  what  could  not 
be  clone  lawfully,  is  valid  after  it  is  done.'  The  learned 
writer  illustrates  these  by  supposing  a  command,  'thou 
shalt  not  steal.'  If  one  does  steal,  the  act  is  void,  and  no 
property  is  gained  thereby  in  the  res  furtiva,  because, 
says  he,  the  obligation  not  to  steal  was  perfect,  and  all 
power  being  taken  away  by  the  law,  the  act  of  taking  is 
wholly  inoperative.  To  take  with  effect  the  property  of 
another  against  his  command,  would  be  to  injure  him,  and 
to  clothe  the  violator  of  the  law  with  a  right;  the  act 
therefore  must  be  wholly  void.  If,  on  the  other  hand,  the 
law  says,  'obey  your  parents,'  and  a  son  of  full  age  marries 
against  their  wishes,  still  the  act  is  valid,  though  unlawful, 
since  the  law  cannot,  as  in  the  case  first  stated,  suppose 
that  nothing  should  result  from  the  act  of  marrying,  as  it 
has  not  expressly  taken  away  the  power  of  acting.  Here 
the  doctrine  is,  that  if  an  imperfect  obligation  be  violated, 
yet  in  effect  it  is  valid,  though  the  act  ought  not  to  have 
been  done:  and  this  agrees  with  the  maxim,  Quod  non  de- 


Lect.  III.]  OF    THE    RIGHTS    OF    NATURE.  117 

bet  fieri,  factum  valet.     Rutherforth,  however,  qualifies 
this  doctrine  by  another,  and  admits  that  what  is  done  in 
opposition  to  imperfect  duties,   is  not  always  valid,  but 
only  when  the  constantly  resulting  effect  is  itself  con- 
sistent with  law.      If  the  effect  of  violating  the  imperfect 
obligation    be    itself    inconsistent  with    other  obligations, 
then  the  act  is  void:  as,  for  example,  if  a  son,  notwithstand- 
ing the  law,   'obey  your  parents,'  should  marry  his  own 
mother,  here  the  respect  which  is  due  from  the  wife  to  her 
husband,  is  said  to  be  inconsistent  with  that  respect  which 
is  due  from  the  son  to  a  mother;  and  this  constantly  re- 
sulting  inconsistency   would   render   the   marriage    void, 
though  the  obligations  on  both  sides  were  only  imperfect. 
In  stating  the  marriage  of  a  son  with  his  mother,  it  is  not 
to  be  imagined  that  the  learned  author  meant  to  admit  its 
validity  on  other  or  general  grounds,  because  he  has  given 
so  trifling  a  reason  for  its  nullity,  as  the  supposed  interfer- 
ence of  the  respect  due  from  a  wife,  with  that  due  from  a 
son  to  his  mother.   Such  a  marriage  is  forbidden,  we  think, 
no  less  by  natural   law,   than  by  the   express  declaration 
of  the  Divine  law;  but  the  example  was  stated  by  Ruth- 
erforth probably  from  the  want  of  a  better;  and  he  argues 
the  invalidity   of  the  marriage  solely   on  the  ground   we 
have  stated,   merely  as  illustrative  of  the  meaning  of  the 
second  maxim. 

The  simple  meaning  of  the  first  maxim  is,  that  no  one 
shall  be  permitted  to  derive  advantage  from  his  own  wrong, 
or,  in  other  words,  that  no  moral  effect  or  right  shall  arise 
from  the  breach  of  a  perfect  obligation.  This  rule  applies 
only  to  perfect  obligations,  and  we  have  nothing  to  say 
against  it.  The  second  maxim  applies  only  to  what  are 
called  imperfect  obligations,  and,  as  a  general  rule,  accord- 
ing to  Rutherforth  gives  effect  and  validity  to  all  that  is 
aimed  at  by  their  infraction.  We  believe,  however,  that 
if  the   examples  which  might  be  put  of  positive  legal  ef- 


118  OP    THE    RIGHTS    OF  NATURE.  [Lect.  III. 

fects  flowing  from  breaches  of  our  imperfect  duties  or  ob- 
ligations, were  strictly  examined,  it  would  be  found  that 
the  obligation  was  either  not  violated  at  all,  or  that  it  was 
superseded  by  some  superior  right  or  duty,  and  that  not  a 
single  case,  unaffected  by  extraneous  circumstances,  can  be 
put,  of  any  legal  advantage  flowing  from  the  actual  in- 
fraction of  an  imperfect  obligation,  any  more  than  from  the 
violation  of  a  perfect  one.  In  the  very  example  put  by 
Rutherforth,  of  a  son  marrying  against  the  will  of  his  pa- 
rents, and  thus  violating  the  imperfect  obligation  flowing 
from  the  command,  'obey  your  parents;'  if  the  marriage 
be  valid,  I  say,  in  this  case,  it  is  because  the  obligation  of 
obedience  did  not  in  any  respect  extend  to  the  requirement 
of  the  parents'  consent  to  a  marriage;  for  if  it  did,  the  ob- 
ligation would  be  perfect,  and  the  marriage  void;  if  it  did 
not,  then  the  maxim  has  no  application  to  it,  and  is  without 
meaning. 

We  have  dwelt  perhaps  too  long  on  the  subject  of  per- 
fect and  imperfect  rights  and  obligations,  and  now  proceed 
to  the  next  division  of  rights,  viz:  into  Natural  and  Ad- 
ventitious. Those  are  denominated  natural  rights  which 
belong  to  men  by  the  gift  of  nature,  and  which  exist  in  that 
state  in  which  man  was  before  the  introduction  of  civil  so- 
ciety. Adventitious  rights  arise  from  civil  and  political 
associations,  or  from  any  state  of  society  in  which  pacts  or 
agreements  would  be  made.  Hence,  all  rights  which  re- 
quire the  intervention  of  some  act  of  man,  as  sovereignty, 
or  jurisdiction  of  all  kinds,  and  property  (strictly  so  called) 
of  all  kinds,  moveable  and  immoveable,  come  under  the 
head  of  adventitious  rights.  Our  right  to  freedom,  invio- 
lability of  person,  reputation,  health  &c.  arc  natural  rights. 
This  division  of  rights  corresponds  essentially  with  that  of 
Aristotle,  in  his  Nicomachcan  Ethics,  viz.  into  Original 
and  Voluntary.  It  is  also  the  same  with  that  of  Maimoni- 
des,  and  other  Hebrew  writer?,  who  distinguish  between 


Lect.  III.]  OF    THE    RIGHTS    OF  NATURE.  119 

ftl^O  Metzooth,  or  Precepts,  and  E3*pl7  Hekim,  or  Sta- 
tutes, the  former  being  the  sources  of  natural  rights,  the  lat- 
ter of  voluntary  or  instituted  rights.*  This  division  also 
corresponds,  essentially,  with  that  of  Sir  Wm.  Blackstone 
into  Absolute  and  Relative  rights.  Absolute  rights  are 
such  as  appertain  to  any  individual,  merely  as  a  single  per- 
son; they  are  such  as  would  belong  to  the  person  merely 
of  all  individuals  in  a  state  of  nature,  and  which  all  men 
are  entitled  to  enjoy,  whether  in  or  out  of  society.  Rela- 
tive rights  are  incident  to  men  as  members  of  society, 
standing  in  various  relations  to  each  other. 

It  is  here  proper  to  remark,  that  the  laws  of  nature  are 
by  no  means  extinguished  by  the  formation  of  societies, 
and  the  enactment  of  positive  laws;  but,  on  the  contrary, 
the  very  basis  of  government  and  laws  is  laid  in  our  natu- 
ral rights;  and  the  natural  law  itself  also  sustains  the  prin- 
ciple, that  as  positive  laws  are  the  dictates  of  the  publick 
sense,  they  are  therefore  obligatory  in  foro  conscientise. 
Hence,  not  only  are  our  natural  rights  protected  by  the  na- 
tural law,  but  our  adventitious  ones  also,  if  they  be  acquired 
consistently  with  that  law.  To  violate  adventitious  rights 
is,  therefore,  to  sin  against  both  the  positive  and  the  na- 
tural law.  It  is  consequently  a  great  mistake  in  those 
who  think  that  civil  laws  create  no  natural  or  moral  obli- 
gation; and  that  the  civil  sanction  is  the  only  one  which  jfr. 
secures  obedience  to  civil  laws.  All  our  adventitious 
rights,  if  acquired  consistently  with  the  law  of  nature,  are 
as  much  our  own,  and  are  as  inviolable,  as  if  they  had  been 
directly  and  originally  given  by  the  natural  law. 

The  third  great  division  of  rights  is  into  Alienable 
and  Unalienable.  Those  rights  which  may  be  parted 
with  consistently  with  law,  are  alienable,  whilst  those 
which  the  law  forbids  us  to  part  with,  are  unalienable.  This 

*  Maimo:  Lib.  3.  Cap.  26. 


120  OF    THE    RIGHTS    OF    NATURE.  [Lect.  111. 

is  the  usual  description,  and  indeed  no  other  could  be  given, 
of  these  rights.     This  is  sufficiently  intelligible  when  we 
speak  of  rights  acquired  in  a  civil  state,  and  when  the  laws 
are  positive:  but  what  rights  shall   be  said  to  be  unaliena- 
ble in  a  state  of  nature,  it  would  be  no  easy  matter  to  de- 
termine.    The  right  of  property  is  alienable,  but  the  right 
of  a  prince  over  his  people  is  unalienable;  these  two  in- 
stances illustrate  Dr.  Paley's  distinction,  which  is,  that  all 
rights  are  unalienable  where  they  originate  in  a  contract 
which,  by  the  express,  or  necessarily  implied  terms  thereof, 
limit  them  to  the  person,   whilst  all  others  are  alienable. 
But  while  the  distinction  between  alienable  and  unalienable 
rights  is  sufficiently  apparent  when  we  speak  of  them  in 
civil  society,  and  under  positive  laws  or  contracts,  we  must 
adopt,  we  think,   a  different  principle  of  distinction  when 
we  are  talking  of  a  state  of  nature,  and  of  the  rights  inci- 
dent thereto.      We  would  class  among  unalienable  rights 
such  only  whose  retention  and  exercise  are  clearly  essen- 
tial to  the  well  ordering  of  our  life  in  such  a  state.    In  that 
state,  as  well  as  any  other,  the  right  of  property  is  aliena- 
ble; and  so  is  the  right  of  mere  physical  liberty,  (if  we  be 
allowed  the  term:)  but  the  right  to  moral  liberty  is  una- 
lienable, because  its  alienation  would  incapacitate  us  to  di- 
rect and  control  our  duties  to  ourselves.     It  is  a  common 
remark  that  political  liberty  is  unalienable;  and  in  a  coun- 
try jealous  of  its  liberty,   it  is  a  salutary  precept;  yet,  on 
principle,  there  is  no  reason  why  it  may  not  be  alienated, 
as  far  as  it  does  not  restrict  our  power  of  self  control,  and 
the  regulation  of  our  conduct  by  the  principles  of  morals. 
It  is  so  dear  and  valuable  a  right,  that  its  alienation  could 
only  be  justified  by  the  most  pressing  necessity,  especially 
as  it  would  be  so  apt  to  involve  consequentially  the  loss  of 
our  civil  and   moral   liberties.     As  to  our  natural  rights, 
some  are,   as  we  have  stated,   alienable,  others  not,   accor- 
ding as  the  rights  are,  or  are  not  essential  to  our  well 


Lect,  ill]  op    THE    RIGHTS    OF    NATURE.  12l 

being.  Our  adventitious  rights  are  all  alienable,  with  the 
qualification  mentioned  by  Paley,  which  he  applies,  and 
we  think  justly,  as  an  invariable  criterion.  Liberty,  as  a 
general  rule,  is  to  be  classed  among  our  alienable  rights; 
for  a  man  may  sell  himself  even  unto  the  most  abject  sla- 
very. But  this  is  a  subject  we  shall  have  occasion  to  advert 
to  again,  before  we  close  the  present  lecture. 

.   .    .       ,        ,  Having  sufficiently  explained  the  na- 

(.'{.)    In   what   the  ...  . 

Rights  of  Nature  con-  ture  and  division  of  rights,  we  now  pro- 
ceed to  consider  in  what  the  Rights  of 
Nature  consist;  and  on  this  topick  we  shall  be  as  concise 
as  may  be  consistent  with  the  correct  understanding  of  our 
subject.  All  rights  respect  either  our  persons  or  our  pro- 
perty. Our  natural  or  absolute  rights,  and  our  adventi- 
tious or  relative  rights,  embrace  all  rights  which  can  possi- 
bly arise  either  in  a  state  of  nature,  or  of  the  most  com- 
plex society.  The  primary  object  of  society  and  law  is 
to  protect  our  absolute  rights,  these  being  the  gift  of  na- 
ture, and  essential  to  our  well-being;  the  secondary  object 
of  law  is  to  guard  us  in  our  relative  or  adventitious  rights, 
these  being  posterior  to,  and  merely  consequent  upon  the 
formation  of  society  and  laws.  The  list  of  our  absolute 
rights  is,  indeed,  a  very  small  one,  when  compared  with 
that  of  our  relative  ones;  but  the  former  are  greatly  the 
most  important,  for  without  their  secured  possession,  those 
which  are  merely  adventitious  would  be  of  no  value 
whatever,  as  it  would  be  impossible  to  enjoy  them.  Let 
us  now  advert  to  the  nature  of  these  natural  or  absolute 
rights,  which  it  is  no  less  the  province  of  the  civil,  than  of 
the  natural  law  to  protect. 

The  first  great  right  of  nature  is  that  of  life,  and  the 
integrity  of  our  body;  of  life,  because  it  is  necessary  to 
the  enjoyment  of  every  other  right,  and  to  the  discharge 
of  all  our  obligations;  and  of  the  integrity  of  our  body, 
because  injuries  to  our  body  involve  danger  to  life;  and  even 
16 


122  OV    THE    RIGHTS    OF    NATUBE.  [Lcct.  IH 

wlien  they  do  not.  they  injure  our  happiness,  and  incapaci- 
tate us,  in  some  degree,  for  the  discharge  of  our  various 
functions  and  duties.  This  right  appertains  in  an  equal 
degree  to  every  human  being,  to  the  least  considerable,  as 
well  as  the  most  important  individual;  and  though  the  life 
of  one  person  is  often  of  more  value  to  families  and  socie- 
ties than  that  of  another,  this  does  not  affect  the  strength 
or  perfection  of  their  respective  rights  to  life,  and  integrity 
of  body;  for  this,  among  other  reasons,  that  there  is  no 
common  tribunal  to  determine  their  relative  importance, 
and  every  individual,  also,  deems  his  own  of  paramount 
value.  This  principle  is  illustrated  in  the  case  of  the  plank 
at  sea;  for  only  superior  strength  would  settle  so  melan- 
choly a  controversy,  where  the  necessity  is  equally  ex- 
treme on  both  sides;  and  though  the  conqueror  would  be 
right  in  thus  saving  himself  at  the  expense  of  another,  that 
other  would  have  been  equally  right,  had  force  given  the 
same  advantage  to  him,  though  his  life  to  society  or  his  fa- 
mily would  have  been  of  little,  or  absolutely  of  no  value. 
Here  then  is  a  case  of  seemingly  hostile,  and  yet  co-exis- 
tent rights.  Perhaps  there  may  be  no  great  utility  in  de- 
termining the  abstract  question,  whether  a  man,  knowing 
his  own  life  to  be  of  less  importance  than  another's,  would 
yet  be  justified  in  snatching  from  him  the  tabulam  in 
nmifragio,  since  instinctive  terror  would  seldom,  if  ever, 
in  such  extremity,  leave  the  reason  to  operate,  and  since 
the  common  sentiment  of  mankind  would  excuse,  though 
it  could  not  applaud  the  act.  There  arc  some  cases,  too,  in 
which  the  exercise  of  this  right  would  do  violence  to  emo- 
tions so  natural  and  strong  in  bosoms  of  sensibility,  that 
the  cold  predetermination  to  exercise  it,  seems,  in  the  eye 
of  some,  to  betoken  barbarity,  or  at  least  great  selfishness 
of  temper. 

That  in  the  crisis  of  danger  our  instinctive  tenaeiousness 
of  life  should  overmaster  these  emotions,  is,  say  these  ob- 


Lect.lll.!  OF    THE    KIGHTS    OF    NATURE-  123 

jectors,  if  not  very  magnanimous,  at  least  excusable;  but 
the}'  seem  to  doubt  whether  one  who  could  deliberately 
predetermine,  on  the  supposition  of  such  an  extremity,  to 
sacrifice    to    the    preservation    of  his    own    life,    however 
worthless,  youth  the  most  helpless,  loveliness  the  most  cap- 
tivating,   wisdom    the    most   profound   and    authoritative, 
would  not  justly  deserve  execration.   I  shall  not  undertake 
to  settle  this  question  for  the  generous  and  magnanimous, 
our  business  being,  not  to  graduate  emotions,  but  to  adjust 
rights.     The  exercise  of  the  right  of  which  we  are  speak- 
ing, differs  from  that  of  some  others  which  are  in  reality, 
and  in  effect,  equally  harsh,  chiefly  in  the  immediate  ap- 
peal to  our  sympathies  which  takes  place  in  the  extreme 
cases    supposed.     There   is  a  similar  lack  of  generosity, 
nevertheless,  in  many  other  cases  where  the  sympathies  do 
not  happen  to  be  so  immediately  called  on.      Philosophers 
starve,  childhood  perishes  from  exposure,  loveliness  devi- 
ates into  crime,  while  many  a  dastard,  who  is  conscious 
that  he  lives  to  neither  profit  nor  pleasure,  feels  no  obliga- 
tion, nor  does  society  ascribe  it  to  him,  to  dissipate  for 
their  relief  his  abundant  store.     Such  a  man  may  not  claim 
the  praise  of  generosity;  but  the  right  of  property  is  not 
the  less  clear  on  that  account.     Curtius  and  the  Horatii 
were  justly  lauded  for  their  magnanimity  in  devoting  them- 
selves for  the  good  of  their  country;  yet  the  mass  are  not 
execrable  for  acting  on  the  more  humble  principle,  that  the 
country  is  well  taken  care  of,  where  every  man  takes  care 
of  himself,  and  who  therefore  content  themselves  with  per- 
forming the  military  service  enforced  by  law.       Perhaps, 
therefore,  the  disesteem  we  should  feel  for  one  who  avowed 
such  a  predetermination,  is  rather  for  the  obduracy  than 
the  injustice  he  betrays.    We  feel  the  same  kind  of  emotion 
against  a  surgeon  who  talks  coldly  of  an  operation,  though 
we  certainly  could  not  blame  him  should  he  avow  his  de* 


124  OF    THE    RIGHTS    OF    NATURE.  [Lect.  Ill 

termination  to  go  through   it  firmly,   and  ought  even  to 
commend  that  firmness  as  a  useful  quality. 

But  it  is  not  every  degree  of  necessity,  though  very 
strong  and  pressing,  in  which  this  principle  of  the  tabula 
in  ncmfragio  is  applicable;  for  there  were  no  end  of  vio- 
lence and  slaughter,  if  a  man,  under  the  pressure  of  even  a 
severe  calamity,  might  for  his  own  advantage,  sacrifice  any 
life  which  he  deemed  of  inferior  important  to  his  own.  I 
have  a  right  to  wrench,  if  1  can,  the  last  biscuit  from  my 
companion  on  the  wreck;  but  I  would  not  be  justified  in 
killing  half  the  crew  of  my  vessel,  in  order  to  save  the 
other  half  from  a  short  allowance  which  might  engender 
disease,  or  prove  highly  injurious  to  a  delicate  person.  I 
have  a  right  to  seize  the  food  of  the  traveller  in  the  same 
desert  with  myself,  if  I  know  that  otherwise  I  must  infal- 
libly starve  before  I  can  obtain  relief;  but  it  were  certainly 
no  justification  for  this,  that  the  next  post  house  was  so 
distant  that  I  was  likely  to  grow  ill  from  the  want  of  food. 
It  is  not  easy  to  measure  every  melancholy  case  of  this 
sort  by  the  principle  assumed;  but  this  is  the  case  with 
many  other  rights,  especially  those  of  the  imperfect  sort. 
The  right  we  have  considered,  being  beyond  the  control  of 
positive  laws,  is,  like  our  natural  rights  before  the  institu- 
tion of  society,  uncertain  in  its  limits,  and  in  its  applica- 
tion.*     The  right  to  life,  therefore,  we  conclude  to  be  the 

*  A  shocking  instance  of  the  exercise  of  this  extreme  right,  occurred  in 
England  not  long  since.  A  carpenter,  with  his  son,  was  engaged  in  re- 
pairing a  steeple  in  a  country  town.  They  were  at  a  lofty  point  of  the 
spire,  the  father  a  few  feet  below  the  son,  when  the  latter  was  observed  by 
his  agonized  parent  to  be  seized  with  a  vertigo.  If  he  fell  in  a  straight 
line,  he  would  certainly  take  his  father  along  with  him,  and  both  would 
perish.  The  father's  life  was  necessary  to  the  support  of  the  boy's 
mother,  and  many  brothers.  The  wretched  father's  resolution  was  taken, 
and,  disengaging  the  ladder,  and  giving  it  a  tilt  in  a  direction  from  himself, 
he  precipitated  his  child  to  the  earth.  I  am  not  aware  (hat  he  was  ever 
tried  for  this  act  of  dreadful  necessity. 


Lect.  Ill  |  OF     J'HK     RIGHTS     OF     NATURE.  125 

most  certain,  general  and  valuable  of  all  our  natural  rights, 
and  to  stand  first  among  our  perfect  rights,  (adopting  the 
received  division,)  since  it  may  be  vindicated  by  force, 
without  measure,  and  to  the  point  of  sacrificing  the  lives  of 
any  number  of  assailants. 

Our  right  to  life  commences  before  we  are  born,  and  is 
protected,  both  by  the  natural  and  civil  law,  as  soon  as  the 
foetus  can  move  in  ventre  sa  mere.  By  the  law  of  England 
in  the  time  of  Bracton,  abortion  procured  by  design,  or 
any  violence  done  to  a  woman  so  as  to  produce  miscarriage, 
was  adjudged  to  be  manslaughter.  But  this  law  was 
changed,  and  it  was  deemed  merely  a  heinous  misdemean- 
or, until  the  late  statute  43  Geo.  3,  ch.  5S,  rendered  it  a 
capital  offence.  But  if  the  child  be  born  alive,  and  then 
die  in  consequence  of  previous  violence  done  to  the  mother, 
it  was  always  considered  manslaughter,  and  by  the  natural 
law  would,  under  circumstances,  incur  the  guilt  of  mur- 
der. 

The  second  great  natural  right  which  claims  our  atten- 
tion, is  to  the  fruits  of  our  bodily  and  mental  labour.  It  is 
certainly  just  that  what  a  man  obtains  by  the  exertions  of 
his  mind,  or  of  his  hands,  or  both  combined,  should  be  his 
own;  and  this  appears  clear  enough  where  the  property  is 
the  product  of  mental  labour  alone.  But  as  to  corporal 
things,  whereon  man's  ingenuity  and  labour  have  been  be- 
stowed, although  the  justice  of  appropriation  is  equal,  there 
has  been  some  refined  reasoning,  into  which,  however,  it 
is  not  my  intention  to  enter  minutely. 

Property,  as  it  is  modified  and  guarded  in  civilized 
states,  is  undoubtedly  the  creature  of  positive  law;  yet 
such,  under  all  circumstances  of  mankind,  is  the  necessity 
of  some  degree  of  appropriation  of  the  soil  and  its  pro- 
ducts, that  we  can  hardly  imagine  the  rudest  state  of  nature 
without  some  notion  of  exclusive  property.  Even  when 
all  the  fruits  of  the  earth  made  but  a  common  stock,  there 


126  OF    THE    RIGHTS    OK    NATURE.  |  Lect.  III. 

must  for  convenience'  sake,  have  been  some  act  acknow- 
ledged as  the  sign  of  appropriation,  and  the  beginning  of 
ownership,  or  there  had  been  no  end  to  conflicts;  and  the 
fruit  which  I  had  plucked  from  the  tree,  had  been  snatch- 
ed from  my  lips  ere  I  had  tasted  it.  Where  all  things  be- 
long equally  to  all,  there  is  no  act  of  an  individual  which 
possesses  the  intrinsick  property  (so  to  speak)  of  making 
it  his  own;  yet  such  is  the  necessity  of  some  common  con- 
sent in  this  matter,  that  it  required  men,  as  we  have  said, 
to  have  made  only  the  first  step  in  association,  to  discover 
the  expedience,  nay  necessity,  of  such  common  and  implied 
compact;  for  implied  it  most  probably  would  be,  and  un- 
doubtedly is  at  this  day,  whenever  one  tribe,  however 
rude,  approaches  the  possession  of  another. 

We  have  said  that  there  is  no  act  of  an  individual  which 
can,  independently   of  such  consent,  bestow  on  him  the 
ownership  of  any  portion  of  the  earth,  or  of  its  fruits;  so 
that  the  right  of  property,  like  all  other  rights,  draws  its 
existence  from  consent,  or  acknowledged  utility  or  neces- 
sity.    It  is  true  that  Mr.  Locke  has  assigned  to  property  a 
different  origin;   for,  in  his  opinion,  things  originally  com- 
mon, became  the   property  of  the  first  occupant,  not  by 
that  tacit  consent  or  agreement  by  which,  according  to  the 
doctrine  of  Grotius  and  others  on  this  subject,  occupancy 
was  recognized  as  the  mark  of  ownership,  but  solely  in  vir- 
tue of  the  occupant's  mixing  with  them  the  labour  of  his 
body,  which  is  his  oivn,  and  thus  makes  the  things  them- 
selves his  own.     Thus,  for  example,  according  to  Locke's 
theory,  if  any  one  removed  fruit  from  a  tree  to  his  own 
cave  or  hut,  or  fashioned  the  bough  of  the  same  tree  into 
a  spear;  in  both  these  acts  there  was  a  labour  of  his  own 
mixed  with  the  thing  taken,  and  by  this  mixture,  or  remo- 
ving of  them   out  of  the  state  of  nature,  the  things  be- 
came the  property  of  such  person;   for  if  any  other  person 
should  take  the  fruit  thus  removed,  or  the  bough  thus  fash- 


Lcct.  III. J  OF     THE     RIGHTS    OF    NATURE.  127 

ioned,  he  took,  at  the  same  time,  the  labour  bestowed  on 
them,  which  never  was  common  property,  and  to  which 
he  therefore  could  have  no  right.  Thus,  while  Grotius 
considers  occupancy  as  the  signal  of  appropriation,  agreed 
on  by  the  common  consent  of  mankind,  Locke  ascribes 
to  occupancy  the  intrinsick  quality  of  producing  property 
itself,  independently  of  all  consent,  inasmuch  as  the  very 
act  of  occupancy  takes  the  things  out  of  their  natural  state, 
and  blends  with  them  that  which  never  was  in  common;  an 
opinion  which  does  not  seem  to  be  justified  by  his  reason- 
ing, or  by  the  nature  of  the  act.  We  think  it  will  be  al- 
allowed,  that  if  I  take  the  raw  material  from  another  man, 
as,  if  I  take  wood  from  my  neighbour,  and  expend  on  it 
the  greatest  skill  and  labour  imaginable,  my  original 
wrongful  taking  will  not  be  justified  on  that  account;  or, 
in  other  words,  it  is  nothing  to  my  neighbour  how  indus- 
triously soever  I  have  exerted  myself  on  the  materials  of 
which  I  despoiled  him,  for  they  are  not  the  less  his  own. 
Nor  is  the  case  at  all  altered  by  the  circumstance  of  the 
material  taken  in  a  state  of  nature,  having  been  common  to 
all  when  the  occupant  chose  to  bestow  his  labour  on  it; 
for  what  is  the  meaning  of  its  being  common  to  all,  but 
that  instead  of  one  person  having  property,  twenty,  a  hun- 
dred, a  thousand,  or  any  number  have  a  joint  property,  in 
which  case  the  many  would  have  the  same  kind  of  right 
which,  when  there  is  only  one,  we  have  supposed  in  that 
one.  Here,  therefore,  is  no  other  difference  than  that  in- 
stead of  taking  from  one,  I  take  from  twenty,  a  thousand, 
or  more;  and  how  this  alters  the  case,  cannot  well  be  made 
to  appear.  As  long  as  I  take  what  I  need  for  the  present, 
I  take  by  the  right  which  is  common  to  all,  but  which, 
however,  is  not  the  right  of  property:  but  the  moment  1 
take  more  than  serves  my  present  want,  I  exercise  an  act 
of  property  or  ownership  contrary  in  the  first  instance 
to  the  common  right,  and  not  justified  by  any  subsequent 


128 


OF    THE    RIGHTS    OF    NATURE-  [Lect.  111. 


labour  bestowed,  or  skill  exerted  on  it.  We  cannot,  there- 
fore, but  adhere  to  the  opinion  of  Grotius,  adopted  by 
most  writers,  and  consider  occupancy  as  the  commence- 
ment of  property,  and  this,  not  in  virtue  of  any  inherent 
quality  in  occupancy,  but  solely  by  reason  of  the  common 
consent  of  mankind,  involved  in  the  received  notion  of  oc- 
cupancy, which  is  the  most  easy,  obvious  and  certain  ex- 
ternal act  by  which  an  intention  to  appropriate  can  be 
declared.  The  opinion  of  Locke,  however,  has  been  unqua- 
lifiedly adopted  by  Sir  Wm.  Blackstcne,  who  advances  it 
as  a  received  doctrine.  This  is  certainly  not  the  case,  and 
the  learned  commentator  has  manifestly  confounded  the 
common  right  of  using,  with  occupancy;  or,  rather,  he  has 
not,  we  think,  sufficiently  adverted  to  the  nature  of  the  act 
of  occupancy,  and  the  consequences  which  would  result 
from  the  doctrine,  that  occupancy,  and  the  bestowing  of 
bodily  labour,  should  per  se  create  property,  independently 
of  all  consent. 

The  common  consent  to  which  we  refer  occupancy, 
may  well  be  presumed  to  have  existed  in  the  rudest 
condition  of  mankind,  since,  though  a  community  of 
lands  be  now  and  then  found  among  savage  tribes  at  this 
day,  the  notion  of  property  in  moveables  is  universal.  And 
well  indeed  it  may  be,  as  it  is  impossible  to  imagine  any 
state  of  mankind  in  which  a  consent  of  this  nature  is  not 
essential  even  for  continuing  the  rudest  companionship; 
and  as  society  became  extended  and  refined,  the  necessity 
of  property  became  every  day  more  apparent.  The  same 
may  be  said  of  the  fruits  of  intellectual  toil,  in  regard  to 
which  the  notions  of  Mr.  Locke  may  have  some  degree 
of  justness.  Literary  property,  or  the  right  of  an  au- 
thor to  the  fruits  of  his  mental  exertions,  has  been  re- 
garded as  an  important  natural  right,  and,  as  such,  has 
often  been   the  object  of  special  legislation,  and  of  grave 


Lect.  III.]  OF    THE    BIGHTS    OF    NATURE.  129 

and  learned  judicial  discussion.*  It  would  be  out  of  place, 
at  this  time,  to  state  the  enlightened  arguments  that  have 
taken  place  in  England  on  this  point;  but  it  is  manifest, 
from  the  cases  to  which  we  have  referred,  that  the  able 
judges  who  decided  them,  were  familiar  with  the  doctrines 
of  natural  jurisprudence,  and  sought  most  of  their  lights 
from  the  great  code  of  natural  law.  We  only  allude  to  this 
fact  now,  in  order  to  assure  the  student  that  the  principles 
of  this  primeval  law  can  never  become  obsolete,  and  that 
he  will  have  more  frequent  occasion  to  refer  to  them  in  the 
discussions  of  the  forum  and  the  senate,  than  he  may 
perhaps  at  this  time  imagine.  Municipal  or  positive  law 
has,  no  doubt,  done  much  towards  denning,  and  expressly 
guarding  our  natural  rights;  but  it  is  quite  certain  that 
there  is  still  much  room  for  argument  and  illustration 
from  the  principles  of  that  copious  fountain,  the  law  natu- 
ral,'which  can  never  become  a  code  of  written  reason; 
and  that  he  who  has  studied  with  care  the  pages  of  the 
great  luminaries  of  the  natural  law,  will  find  how  much 
more  valuable  becomes  the  knowledge  gained  by  him  from 
the  volumes  of  a  Coke,  a  Gilbert,  a  Blackstone,  a  Fearne, 
or  a  Preston. 

A  third  right  of  nature,  to  which  we  now  advert,  is  re- 
putation. On  this  subject  it  is  sufficient  to  observe,  that  the 
preservation  of  a  good  name  is  not  less  essential  to  the  pur- 
poses of  life,  than  it  is  agreeable  to  the  conscience  which 
nature  hath  implanted  within  us.  To  observe  our  pro- 
mises, to  regard  an  oath,  to  respect  the  property  of  our 
neighbour,  are  circumstances  essential  to  our  conversation 
with  others,  because  without  them  we  cannot  acquire   the 

*  Vide  Miller  v.  Taylor,  4  Burrow's  Reports,  2303.  Donaldson  v.  Beckct, 
7  Brown's  Parliamentary  Cases,  88.  Macklin  v.  Richardson,  Ambler's  Re- 
ports, 694.  Clemcnti  v.  Walker,  2  Barnwall  and  Cresswell's  Reports,  861. 
Gyles  v.  Wilcox.  2  Atkinson's  Reports,  111.  WilUns  v.  Aikin,  17  Vesey'» 
Reports,  422. 
17 


130 


OF    THE    RIGHTS    OF    NATURE.  [Lcct.  1H. 


confidence  and  esteem  which  would  induce  others  to  culti- 
vate an  intercourse  with  us;  and  therefore  a  reputation  for 
these,  and  other  virtuous  qualities,  is  essential  to  us  in  the 
business  of  men.     A  fair  name  is  also  highly  prized  by  us 
from  that  inborn  desire  which  we  all  possess  alike,  however 
our  modes  of  obtaining  it  may  differ,  of  gaining  the  love  or 
admiration  of  our  fellows;   and  whether  the  desire  of  that 
love  and  admiration  springs  from  the  innate  perception  of  the 
intrinsick  beauty  of  virtue,  or  from  our  sense  of  their  ope- 
ration  on  our  interests,  they  are   not  the  less  sought  and 
loved,  and  ranked  amon^  our  dearest  and  least  alienable 
possessions.    In  the  simple  intercourse  which  man  has  with 
man  in  a  state  of  nature,  an  honest  and  unspotted  reputa- 
tion is  still  highly  valuable:  it  is,  indeed,  the  only  means 
he  has  to  extend  and  strengthen  the  partial  communion  he 
may  have  with  the  species.      In  society,  reputation  is  pro- 
tected as  a  natural  right  of  inestimable  value,  and  the  penal- 
ties against  slander  and  libel  have  been,  by  the  laws  of  most 
countries,  extremely  severe.    But  as  this  subject  more  pro- 
perly belongs  to  a  distinct  part  of  our  course,  and  as  we 
shall  be  obliged  to  advert  to   it  again,  in  the  sixth  lecture, 
we  decline  at  this  time  any   inquiry  into  the  enactments 
of  positive  law  against  the  infraction  of  this  valuable  natu- 
ral right. 

A  fourth  natural  right  is  that  of  freedom  from  restraint, 
or  personal  liberty.  The  rights  of  personal  security,  of 
private  property,  of  reputation,  and  of  personal  liberty, 
have  been  always  regarded  as  the  cardinal  or  most  valua- 
ble of  our  natural  rights;  and  are  indeed  the  divisions  to 
which,  perhaps,  every  species  of  natural  right  must  be  re- 
ferred. 

The  right  of  liberty,  simple  as  its  nature  may  at  first 
appear,  has  been  a  topick  of  much  discussion,  and  of  very 
contradictory  opinion.  The  word  liberty,  considered  gen- 
erally, may  perhaps  be  defined  as  the  power  which  a  man 


Lect.  III-l  6F  THE  RIGHTS  OP  NATURE.  131 

has  to  act  as  he  thinks  fit,  where  no  valid  law  or  obliga- 
tion restrains  him.  Natural  liberty,  therefore,  is  the  power 
of  acting  as  we  please,  except  where  we  are  restrained  by  the 
law  of  nature.  Liberty,  consequently,  is  not  the  power  of 
doing  whatever  we  please,  although  the  word  is  sometimes 
used  in  that  sense,  for  we  hear  in  familiar  speech  of  such 
phrases  as  these;  'you  are  at  liberty  to  kill  him,  but  if  you 
do,  you'll  suffer  for  it;'  'you  are  at  liberty  to  take  it,  but 
you'll  be  punished  for  theft.'  Now,  according  to  the  defi- 
nition just  given,  a  man  would  in  neither  of  these  cases  be 
at  liberty  to  act  in  the  way  mentioned;  for  he  would  be 
forbidden  by  the  law  of  nature,  and  perhaps  by  positive 
law  also;  and  in  truth,  in  using  such  a  form  of  speech,  we 
should  only  be  substituting  the  word  liberty  for  physical 
power,  which  is  a  very  different  thing  from  liberty,  or  na- 
tural right.  A  man  may  indeed,  on  a  principle  of  calcula- 
tion, be  willing  to  do  the  act,  and  submit  to  the  sanction 
or  penalty  of  the  law;  but  still  he  cannot  be  said  to  be  at 
liberty  to  do  the  act;  he  has  the  physical,  but  not  the 
moral  ability  to  do  it;  and  the  word  liberty,  when  properly 
used,  is  always  applied  to  man  wholly  in  reference  to  him 
as  a  moral  agent,  though,  as  we  have  already  stated,  it  is 
sometimes  incorrectly  used  without  this  limitation.  Hence 
we  find  a  distinction  in  the  books  between  natural  and  sa- 
vage liberty,  which  last,  in  truth,  is  not  liberty  at  all.  Sa- 
vage liberty  is  that  which  limits  its  enterprises  only  by  the 
strength  of  the  individual,  or  what  of  the  united  physical 
power  of  others  he  may  be  able  to  wield  by  his  influence, 
without  regard  to  rights  of  any  kind.  Such  a  liberty  is 
unhappily  often  used  by  bad  men  in  all  stages  of  society, 
but  has  never  been  acknowledged,  except  by  Mr.  Hobbes 
and  his  disciples,  to  belong,  of  right,  to  any  individual  or 
nation,  in  any  stage,  however  rude,  of  human  existence. 
Natural  liberty,  on  the  other  hand,  is  subject  to  the  laws, 
or,  more  properly  speaking,  the  obligations  of  the  state  of 


j  32  OF    THE    RIGHTS  OF    NATURE.  [Led  III. 

nature,  which  are  those  pertaining  to  humanity  at  large; 
and,  as  was  laconically  remarked  by  Montesquieu  in  rela- 
tion to  civil  liberty,  'if  a  man  could  do  what  these  laws 
forbid,  he  could  no  longer  be  possessed  of  liberty,  since  all 
his  fellow  men  would  have  the  same  power;'*  in  other 
words,  that  could  with  no  justice  be  called  liberty,  which, 
while  it  exercised  an  uncontrolled  independence  as  to 
others,  was  proportionably  exposed  to  some  fortuitous  ty- 
ranny from  other  quarters.  As  the  liberty  of  physical  mo- 
tion must  be  regulated  by  the  laws  which  nature  hath  im- 
pressed upon  matter,  so  moral  liberty  ought  to  be  regulated 
by  the  ties  of  mutual  obligation.  Since  in  a  state  of  nature 
there  exist  no  positive  laws;  since  there  are  no  lawgivers 
to  be  respected,  no  magistrates  to  be  obeyed,  our  liberty 
in  this  state  is  under  no  other  restriction  than  such  as 
springs  from  our  intrinsick  nature,  and  essential  constitu- 
tion; and  these  restrictions  are  ascertained  by  the  lights  of 
reason  and  conscience. 

Liberty  has  different  acceptations,  according  as  it  is  va- 
ried by  circumstances,  or  the  relations  in  which  persons 
may  stand.  Hence  liberty  has  been  said  to  be  of  the  seven 
following  kinds:  1.  Savage  liberty,  or  the  libertas  faciendi 
quidlibet.  2.  Natural  or  moral  liberty.  3.  Social  liberty, 
4.  Simple  freedom  from  confinement.  5.  Relative  liberty, 
or  Facultas  ejus  quod  cut  que  facer  e  libet,  nisi  quid  vi 
aut  jure  prohibetur.  6.  Civil  liberty:  and  7.  Political 
liberty.  Perhaps  this  classification  is  too  minute,  for  some 
of  the  kinds  are  scarcely  distinguishable  from  each  other. 
Savage  liberty  is  probably  not  entitled  to  be  regarded  as 
liberty  at  all,  for  the  reasons  just  given,  and  for  others 
which  will  be  mentioned  hereafter.  Social  liberty  is  dis- 
tinguished from  civil  liberty,  by  a  very  nice,  and  almost 
imperceptible  line.    The  fourth  kind,  viz.  Simple  freedom 

*  Mont.  Spir.  of  T.aws,  book  1.  ch.  3. 


Lect.  III.]  OF    THE    RIGHTS    OF    NATURE.  133 

from  confinement,  is  rather  an  actual  condition,  than  a  fa- 
culty, or  right;  and  as  a  right,  it  is  included  in  several  of 
the  other  kinds.  The  seventh,  viz.  Relative  liberty,  seems 
to  convey  no  definite  meaning,  as  distinguishable  from  na- 
tural and  civil  liberty.  For  a  detailed  explanation  of  these 
several  kinds  of  liberty,  we  refer  the  student  to  the  author- 
ities below.*  In  the  sixth  lecture,  however,  we  shall  have 
occasion  to  explain  with  care  most  of  the  foregoing  divi- 
sions of  liberty. 

(4.)  Liberty  is  sub-  We  shall  conclude  the  present  lecture 
ject  by  natural   law       .,,    ,    .   a  ...  ,  ,  ,,      ..     . 

to  three  species  of  Wlth  br,efly  Pointing  °ut  to  you  the  limi- 
restriction.  tations  to  which  liberty  is  subjected  by 

the  principles  of  the  natural  law.  The  restriction  to  which 
we  allude  is  three-fold,  arising,  first,  from  our  duty  towards 
God;  secondly,  from  our  duty  towards  mankind;  and 
thirdly,  from  our  duty  to  ourselves.  These  we  shall  con- 
sider in  an  inverted  order,  beginning  with  our  duty  to- 
wards ourselves. 

1st.  It  is  evident  from  the  structure  of  our  bodies,  and 
from  the  temper  of  our  minds,  that  both  are  adapted  to  af- 
ford us  great  enjoyment  and  pleasure,  including  under  the 
word  pleasure  all  the  utilities  of  life;  which  extended  idea 
is  strictly  philosophical  under  other  systems  besides  that 
of  Epicurus.  But  neither  of  them  will  arrive  at  these  de- 
sirable ends  without  a  proper  order  and.  economy  of  them; 
so  that  health  of  body,  and  soundness  of  mind,  (the  mens 
sana  in  corpore  sano,)  are  the  foundation  of  all  our  plea- 
sures, and  all  the  utilities  of  life.  It  follows  hence,  that 
it  is  a  high  duty  in  us  to  preserve  our  health,  and  to  culti- 
vate our  intellect,  so  that  the  body  may  be  guarded  against 
injury  and  premature  decay,  and  the  mind   be  preserved 

*  1  Burlamaqui's  N.  Law,  chap.  3,  sec.  15.  1  Tucker's  Blackstone,  124, 
125.  145.  2  Rutherforth's  Institutes,  374.  388.  1  Evans'  Pothier  on  Obliga- 
tions, 51.   Montesquieu's  Spirit  of  Laws,  Book  xi.  ch.  15. 


134  OF    THE    RIGHTS    OF    NATURE.  [Lcct.  III. 

from  the  weeds  of  ignorance  and  vice,  during  the  usual 
term  of  life  allotted  by  Providence  to  man.  To  this  class 
of  duties  belong  temperance,  self-government,  industry, 
and  the  pursuit  of  knowledge,  qualities  which  are  hardly 
less  grateful  in  their  influence  on  our  fellows,  than  they 
are  useful  to  ourselves. 

2.  Our  natural  liberty  is  limited,  in  the  next  place,  by 
our  duty  towards  mankind.  If  we  desire  to  live  peaceably 
with  others,  to  derive  our  proper  enjoyment  from  the 
goods  of  nature,  and  make  the  best  use  of  our  faculties,  we 
must  show  to  others  that  justice  and  benevolence  which 
will  conciliate  their  confidence  and  affections,  and  engage 
them  to  a  similar  demeanour  to  ourselves.  This  restric- 
tion of  our  liberty,  while  it  is  thus  essential  to  the  purposes 
of  life,  is  happily  heightened  by  that  desire  of  mutual 
esteem  which,  as  we  have  elsewhere  remarked,  causes  the 
sacrifice  of  many  selfish  gratifications.  And  if  all  these 
fail  in  producing  a  proper  temper  and  conduct  towards  our 
species,  there  is  another  principle  which  is  yet  loftier  and 
more  solemn  than  all  the  rest,  and  which  has  been  appeal- 
ed to  in  all  ages,  as  the  foundation  and  principal  bulwark 
of  human  society,  laws  and  obligations:  we  allude  to, 

3.  Our  duty  towards  God.  If  there  were  no  other  rea- 
son for  restricting  our  natural  liberty  by  obedience  to  the 
will  of  God,  than  his  unlimited  power  over  our  destinies, 
it  were  of  itself  sufficient.  But  we  discover  that  this  Be- 
ing adds  infinite  benevolence  to  unlimited  power,  and  that 
all  his  laws  are  promotive  of  our  felicity:  and  moreover, 
as  his  benevolence  embraces  all  mankind  no  less  than  our- 
selves, we  cannot  violate  the  laws  of  justice  or  benevolence 
towards  any  of  our  species,  without  at  the  same  time  op- 
posing his  designs.  Our  duty  therefore,  both  towards 
others  and  ourselves,  is  a  part  of  our  duty  towards  God. 
But  our  more  particular  duty  towards  him,  is  to  entertain 
just  notions  of,  and   affections  towards  him;    firmly  to  be- 


Lect.  III.]  OF    THE    RIGHTS    OF  NATURE.  135 

lieve  his  existence,  wisdom,  power  and  goodness;  and  to 
show  these  by  our  deportment  in  regard  to  him,  as  well  as 
by  the  discharge  of  our  duties  towards  our  fellows. 

All  these  restrictions  on  our  natural  liberty  obtain  in 
every  modification  of  our  existence. 

Our  natural  liberty  being  thus  limited  in  the  three  ways 
we  have  stated,  it  has  been  made  a  question  whether  we 
can  voluntarily  lay  it  under  a  general  restriction;  that  is, 
whether  liberty  be  an  alienable  right.     This  topick  has  been 
alluded  to  in  the  present  lecture,  with  a  promise  to  recur 
to  it.     To  determine  this  question  in  the  manner  that  Ru- 
therforth  has  done,  by  merely  saying  that  liberty  is  alien- 
able 'because  all  our  rights  are  alienable  as  far  as  it  is  not 
contrary  to   any  law  for  us  to    part  with   them,'  is,  per- 
haps, to   determine  right,  but  would  not  distinguish  be- 
tween the  different  and  distinct  ideas  which  are  compre- 
hended in  the  same  phraseology.    That  I  have  a  right  to 
restrain  my  liberty,  that  is,  to  part  with  it  to  a  certain  ex- 
tent, is  obvious  enough  from  my  daily  obliging  myself  by 
contracts  and  promises,  which  I  am  not  only  at  liberty,  but 
bound  in  duty  to  perform.    Unquestionably,  too,  I  am  un- 
der an  obligation  to  restrain  my  liberty  according  to  the 
behests  of  the  laws;   nor  can  it  be  questioned  that  a  man 
may  sell  his  labour  to  another,  even  for   life;   nay,  fur- 
ther, he  may  bind  himself  by  all  the  obligations  of  slavery. 
So,  likewise,  a   man    may    subject   himself  to    imprison- 
ment for  life,  under  the  influence  of  some  extraordinary 
motive,  such  as  to  save  the  life  of  a  worthy  man,  or  the  life 
of  a  parent  necessary  to  his  children.     The  doubt  as  to  the 
alienable  nature  of  liberty,  has,  we  conceive,  arisen  from 
two  causes;  first,  from  not  properly  ascertaining  the  nature 
and   extent  of  the  obligations  of  slavery;    and   secondly, 
from  not  correctly  distinguishing  between  natural  liberty, 
and  civil  and  political  liberty.      It  has  been  urged,  in  the 
first  place,  that   liberty  is   not    alienable,  for    that   no  one 


136  OF    THE    RIGHTS    OF  NATURE-  [Lect.  III. 

can  sell  himself  into  slavery,  that  being  a  perfect  despot- 
ism, or  an  absolute  power  in  the  master  to  control  all  the 
actions  of  the  slave,  for  the  sole  emolument  of  the  master. 
If  this  be  the  legitimate  meaning  of  slavery,  it  must  be  ad- 
mitted that  liberty  cannot  be  thus  alienated.  But  this  is 
assuming  the  very  ground  of  the  controversy;  we  do  not 
think  that  this  is  the  nature  and  extent  of  slavery.  The 
master's  rights,  and  the  slave's  obligations,  must  always  be 
subject  to  the  restraints  of  the  natural  law.  The  power 
of  the  master  may  be  called  absolute,  or  a  perfect  des- 
potism; but  still  these  terms  do  not  in  se  imply  the  ab- 
sence of  all  limitation,  but  simply  that  the  power  is  abso- 
lute or  perfect,  because  restricted  by  no  positive  compact 
or  agreement  between  the  parties,  and  possibly  by  no  ex- 
press law  of  man.  Thus,  for  example,  parental  power  is 
said  to  be  absolute,  because  there  may  be  no  positive  limi- 
tations on  it;  but  there  are  many  implied  restrictions,  for 
it  is  governed  by  a  superior  law,  viz.  that  of  God,  of  con- 
science, of  nature.  So,  also,  civil  despotism  is  said  to  be 
absolute,  as  there  are  no  constitutional  nor  positive  limita- 
tions on  it;  but  yet  it  is,  from  its  nature,  limited  by  the 
laws  of  God  and  nature,  and  by  the  ends  of  the  civil  union. 
With  a  like  understanding  of  the  word  slavery,  there 
can  be  no  doubt  that  liberty  is  alienable  to  every  extent 
that  does  not  import  a  power  in  another  to  direct  all  our 
actions,  without  any  reference  to  the  laws  of  nature  or  of 
God.  To  this  extent  no  man  can  go,  because  no  one  pos- 
sesses such  savage  and  unlimited  liberty,  and,  consequently, 
cannot  alienate  to  another  what  he  does  not  himself  pos- 
sess. Could  this  be  done,  all  the  obligations  of  man  might 
be  cancelled,  and  that  might  be  effected  per  obliquum, 
which  could  not  lawfully  be  done  per  directum.  Under- 
standing slavery,  then,  in  the  sense  we  have  defined  it, 
we  can  see  no  reason  for  supposing  that  the  law  of  nature 
forbids   the   alienation  of   liberty,  even    to   the  extent  of 


Lect.  HI]  OF    THE    RIGHTS    OF    NATURE.  13? 

placing  the  person   who  parts  with  it,  in  a  state  of  sla- 
very. 

The  second  cause  of  errour  on  this  head  consists,  as  we 
have  stated,  in  not  properly  distinguishing  between  natural 
liberty,  and  civil  and  political  liberty.  Men  in  society, 
feeling  the  advantages  of  certain  laws,  and  a  defined  con- 
stitution, have  endeavoured  to  establish  it  as  a  maxim,  that 
though  natural  liberty  may  be  alienable,  yet  civil  and  poli- 
tical liberty  are  not.  And  many  persons,  not  adverting  to 
the  various  kinds  of  liberty,  have  erroneously  contended 
that  liberty  generally  is  unalienable.  The  alienation  of  na- 
tural liberty,  when  it  places  the  person  in  a  state  of  slavery, 
has  been  supposed  by  many  writers  to  involve  necessarily 
the  posterity  of  such  person  in  the  same  condition.  We 
shall  have  occasion  hereafter  to  comment  on  this  doctrine, 
which  we  conceive  to  be  founded  on  a  tissue  of  sophistical 
reasoning.  So  also,  as  it  is  said  that  the  alienation  of 
civil  and  political  liberty  seems  necessarily  to  implicate 
the  rights  of  the  posterity  of  those  who  make  it,  it  has 
been  contended  that  the  first  of  these  cannot  be  alienated, 
as  society  is  constituted,  without  involving  the  slavery  of 
our  offspring;  and  that  the  second  cannot  be  renounced  by 
its  possessors,  without  endangering  the  safety  of  the  other. 
In  regard  to  the  individual  himself,  we  entertain  no  doubt 
as  to  his  right,  under  the  lex  naturse,  to  alienate  either  his 
civil,  or  his  political  liberty.  There  is  nothing  immoral, 
wrong,  or  inconsistent  with  natural  law,  in  an  individual's 
expatriating  himself,  or  becoming  a  mere  cosmopolite,  that 
is,  a  citizen  or  subject  of  no  country.  He  may  contract  to 
relinquish  his  own  civil  and  political  rights  entirely;  but 
how  far  these  may  be  alienated  so  as  to  involve  our  posteri- 
ty, will  be  a  topick  for  future  inquiry.  When,  however,  we 
consider  that  these  rights  are  essential  to  our  safety,  to  a 
proper  tone  of  mind,  to  intellectual  and  moral  improve- 
ment, it  cannot  be  doubted  that  he  who  yields  them  up,  on 
IS 


138  OP    THE    RIGHTS    OF    NATURE.  [Lect.  Ill, 

any  occasion  whatever  when  they  can  be  asserted  with  any 
prospect  of  success,  and  with  less  sacrifice  than  that  which 
may  arise  from  their  alienation,  commits  such  a  crime 
against  a  prudent  economy  of  his  rights,  as  merits  the  ap- 
pellation of  a  great  enormity. 

We  have  stated  that  a  man  has  no  right  to  alienate  his 
liberty,  so  as  to  give  to  another  a  power  to  command  what 
is  contrary  to  the  rights  and  obligations  of  nature.  So, 
also,  there  are  many  rights  essential  in  themselves  to  hu- 
man nature,  and  whose  exercise  we  have  neither  a  moral 
nor  physical  power  to  restrain;  such,  for  example,  as  the 
right  and  duty  of  reverence  to  God,  and  the  freedom  of 
thought,  especially  on  matters  of  conscience  and  religion; 
the  persecution  of  which  is  surely  the  vilest  infringement 
of  human  liberty  that  despotism  ever  attempted,  since  it 
was  a  matter  which  punishment  might  reach,  but  could  ne- 
ver amend  or  prevent,  and  was  therefore  no  longer  pun- 
ishment, but  cruelty  and  malice.  So,  too,  the  right  to 
judge  in  one's  own  cause,  may  be  called  unalienable,  be- 
cause it  is,  in  truth,  involuntary,  and  in  society  we  in 
strictness  give  up  the  right  to  redress,  rather  than  the 
right  to  decide.  So,  also,  the  cultivation  of  virtue,  or  the 
mind,  though  its  outward  acts  may  be  restrained  by  despo- 
tism on  the  one  hand,  or  publick  licentiousness  and  turbu- 
lence on  the  other,  is  the  duty  cf  all  situations  alike,  and 
is  the  irrefragable  obligation,  as  well  as  the  unalienable 
right  of  man,  in  all  places,  and  under  all  circumstances. 
The  decrees  of  despots,  therefore,  which  would  limit  the 
diffusion  of  knowledge,  and  keep  the  mind  enthralled  in 
ignorance,  are  the  most  alarming  acts  of  tyrannical  power, 
and  should  be  met  at  once  by  the  most  decided  opposition 
of  the  people.  So,  on  the  other  hand,  that  unworthy  jea- 
lousy which  is  sometimes  manifested  by  the  people  in  re- 
publicks,  against  knowledge,  and  the  power  and  influence 
which   it   justly  confers,  may   be  equally  detrimental,  and 


Lect.  III.]  OF    THE    RIGHTS    OF    NATURE.  139 

should  be  obviated  in  the  only  effectual  way,  by  a  judici- 
ous use  of  that  power,  and  by  timely  and  constant  exer- 
tions to  enlighten  the  general  mind.  Little,  however,  of 
this  narrow  jealousy  is  to  be  seen  among  the  people  of  this 
country;  and  that  little  is  diminishing  daily.  But  whether 
the  mind  be  shackled,  and  compressed  within  unnatural 
limits,  through  the  fear  of  despots,  or  the  jealousy  of  an 
ignorant  multitude,  the  effect  is  the  same,  and  the  infringe- 
ment of  our  natural  liberty  is  equally  enormous  and  unjust. 
Happy  is  the  country  where  the  people  are  enlightened  as 
well  as  free;  and  free  must  that  country  soon  become,  if 
the  people  are  enlightened.  There  are  a  few  remaining 
rights  which  are  referred  to  the  natural  law,  and  which  are 
yet  to  be  briefly  considered;  with  these  we  shall  close  the 
present  lecture. 

A  fifth  right  of  nature  is  said  to  be  that  of  patrimony, 
or  the  domestic  right  of  children  to  property  acquired  by 
their  parents.  This  right  has  been  questioned  by  some 
judicious  writers,  by  whom  it  has  been  contended  that  we 
can  have  no  property  by  the  law  of  nature,  beyond  the 
mere  demands  for  sustenance;  that  nothing  can  be  assumed 
beyond  what  is  required  for  our  use;  and,  consequently, 
that  we  can  have  no  control  over  our  acquisitions,  after 
our  power  to  use  them  has  ceased  by  death.  It  is  further 
argued  by  them,  that  even  if  they  be  greatly  improved  by 
our  labour,  it  is  sufficient  if  they  have  thereby  become  more 
advantageous  to  ourselves,  and  that  they  can  found  no  right 
in  us  to  transmit  them  to  others  after  death:  hence,  say  they, 
such  qualified  property  ends  with  our  life,  and  then  reverts 
to  the  common  stock,  and  becomes  again  subjected  to  the 
claim  of  occupancy.  They  infer  from  this  course  of  argu- 
ment, that  children  have  no  better  claim  to  their  parents' 
acquisitions,  than  others  have;  and  that  even  in  civil  socie- 
ty, there  needs  the  sanction  of  law,  not  only  to  clothe  them 
with  a  superiour  claim,  but  also  to  transmit  such  properly 


140  OF    THE    RIGHTS    OF    NATURE.  [Led.  ill. 

in  a  prescribed  and  secured  course  of  descent:  So  that  in- 
dependently of  law,  a  man's  estate,  even  in  society,  would 
be  a  subject  of  occupancy,  and  the  claim  of  strangers  would 
be  equally  valid  by  such  occupancy,  with  that  of  the  chil- 
dren or  other  relatives  of  the  deceased.  The  better  opi- 
nion, however,  on  this  subject  is  wholly  different,  viz. 
that  property  beyond  the  wants  of  man  may  be  acquired 
in  a  state  of  nature,  and  in  society,  independently  of  law; 
that  such  property  is  not  only  alienable  inter  vivos,  but 
that  children  have  a  natural  and  superiour  claim  to  the  pro- 
perty of  their  parents  over  strangers;  that  it  does  not  re- 
vert by  the  lex  naturoe  to  the  common  stock;  and  that  in 
society  it  needs  not  the  aid  of  law  to  vest  such  a  right  in 
the  children.  Both  Grotius*  and  Puffendorf  have  argued 
this  point  full}',  in  favour  of  the  paramount  claim  of  off- 
spring, and  other  relatives  of  a  deceased  person  who  has 
been  silent  as  to  his  wishes  in  relation  to  the  disposition  of 
his  property  after  his  death,  showing  that  the  province  of 
the  civil  law  is  merely  to  regulate  the  course  of  descent. 
We  know,  also,  that  in  the  eailiest  records  of  human,  no 
less  than  of  divine  history,  the  right  has  not  only  been  ac- 
knowledged, but,  in  most  nations,  parents  have  been  con- 
sidered almost  criminal  who  have  neglected  to  amass  pro- 
perty for  their  children;  and  the  earliest  laws  have  inhibit- 
ed their  alienating  property  to  the  prejudice  of  those  who 
appear  to  have  such  strong  claims.  This  was  the  law  in 
the  forests  of  Germany  no  less  than  at  Athens;  and  Plato 
lays  it  down,  that  the  possessions  of  a  parent  are  held 
merely  in  trust  for  his  children;  whilst  by  the  Roman  law 
the  child  could  be  disinherited  only  for  valid  reasons,  to 
be  sanctioned  by  a  court  of  justice. 

A  sixth  natural  right  is  said  to  be  that  of  making  a  will. 

Those  who  deny  the   patrimonial   right  of  children,  of 
course  repudiate  the  idea  of  a  parent  having  a  natural  right 

*  Grotius,  De  Jure  Bel.  et  Pac.  6. 2.  c.  1.  sec.  5. 


Lect.  III. 


OF    THE    RIGHTS    OF    NATURE.  141 


to  make  a  will,  and  refer  the  testamentary  power  wholly  to 
the  aid  of  the  civil  law.      Grotius,  however,  is  very  clear 
in  considering  it  a  natural  right,  and  holds  that  civil  laws 
merely  prescribe  the  formulae  of  the  instruments  by  which 
the  testator's  will  is  indicated,  and  sometimes  interfere  to 
prohibit  a  prejudicial  exercise  of  this  natural  right.     Puf- 
fendorf  on   the  other  hand,  though   he  admits  the  natural 
claim  of  heirs  in  case  of  intestacy,  does  not  agree  with  Gro- 
tius  in  referring  the  testamentary  power  to  the  natural  law; 
but  his  reasoning  on  the  subject  appears  to  us  very  unsatis- 
factory.     The  weight  of    authority    may  be  on    the  side 
of  Grotius;    but  his  able   commentator,   Dr.  Rutherforth, 
has  argued  this  point  with  his  usual  ingenuity,  and  has  de- 
cided against  the  natural  right  of  disposing   by  will.      The 
course  of  his  reasoning  on  this  subject  is  substantially  as 
follows.     He  thinks  that  independently  of  the  aid  of  the 
municipal  law,  no  one  can  transfer  his  property,  either  by 
will  or  by  intestate  succession;  for  if  the  devisee  be  made 
previously  acquainted  with   the  testator's  kind   intentions, 
and  accept  of  the   bequest,  such  a  transfer  would  not   be 
strictly  by  will;  and  if  his  acceptance  were  not  during  the 
life  of  the  testator,  the  transfer  would  come  too  late,  the  tes- 
tator then  ceasing  to  have  any  power  over  the   property. 
Consent  to  part  with  property,  and  acceptance  by  him  to 
whom  it  is  to  be  conveyed,  are  essential  to  every  transfer, 
unless  the  laws  of  society  see  fit  to  sustain  a  transfer  on 
different  principles.     It  is  the   nature  of  a  will  to  operate 
only  after  death;    acceptance  can  come  only  at  that  time, 
and  positive  law  permits  this  in  aid  of  the  intention  of  the 
testator,  which  would  be  otherwise  defeated.    The  testator's 
consent  issufficiently  manifested  by  the  will  itself;  but  where 
the  legatee's  acceptance  comes  (as  it  must)  after  the  death 
of  the  testator,  there  would  be  an  interval  of  time  in  which 
the  thing  bequeathed  would  be  without  any  owner,  and 
consequently   it   would  revert  to   the  common  stock,  to 


142  OF    THE    RIGHTS    OF    NATURE-  [Lect.  Ill 

be  awain  the  subject  either  of  division  or  of  occupancy. 
Every  one  is  supposed  to  have  acquired  property  by  occu- 
pancy or  by  division.  His  property  only  extended  to  the 
ri"-ht  of  enjoyment  during  life,  and  of  alienation  inter  vi- 
vos. So  also,  by  the  jus  naturae,  no  one  is  competent  to 
transmit  his  estate  to  his  heirs  by  right  of  succession  ctb 
inteslato,  any  more  than  he  can  transfer  it  to  any  one  by 
express  will,  because,  in  either  case,  as  acceptance  must 
come  after  the  death  of  the  owner,  the  heir  or  legatee  can 
have  no  settled  or  fixed  right  at  the  very  instant  of  the 
owner's  decease.  If  the  acceptance  or  consent  take  place 
during  the  owner's  life,  it  can  only  be  as  to  a  present  right, 
to  be  enjoyed  at  a  future  period;  and  even  in  this  light  it 
would  not  come  up  to  the  received  notion  either  of  succes- 
sion ab  intestato,  or  of  taking  by  will.  A  will,  moreo- 
ver, is  in  its  nature  revocable  till  death,  and  can  transfer 
no  inchoate  right  whatever  before  that  event;  so  that  if  the 
laws  of  society  are  wholly  silent  on  the  subject  of  succession 
by  right  of  inheritance,  or  of  taking  by  will,  the  heir  in 
the  one  case,  and  the  legatee  in  the  other,  have  no  more  i  ight 
to  the  estate  than  any  one  else.  It  rests  in  the  body  of  the 
community,  and  there  remains  until  it  is  again  disposed  of 
either  by  occupancy  or  division. 

The  foregoing  view  of  the  subject  is  concurred  in  by  Sir 
William  Blackstone,*  who  considers  the  jus  disponendi, 
whether  by  descent,  devise,  or  otherwise,  to  be  merely  a 
civil  right,  and  that  the  law  of  nature  suggests  that,  on  the 
death  of  any  owner,  the  estate  should  become  common,  and 
be  again  liable  to  the  right  of  occupancy.  This  theory, 
however,  is  not  sustained,  we  think,  by  sound  reasoning, 
and  it  certainly  has  not  the  weight  of  authority  in  its  fa- 
vour. 

But  if  the  testamentary  power  be  established  as  a  natural 
right,  it  is  still  doubted  whether  it  extends  so  far  as  to  ena- 

*  2  Black.  Com.  1. 


Lect.  III. j  OF    THE    RIGHTS    OP    NATURE.  143 

ble  a  parent  to  bequeath  his  property  wholly  from  his  off- 
spring. It  would  be  difficult  to  come  to  any  very  clear  de- 
cision on  this  subject,  since  it  depends  on  such  a  variety  of 
circumstances.  The  age  of  the  child,  its  ability  to  pro- 
vide for  itself,  its  conduct  to  its  parents,  its  character  &c. 
may  all  vary  the  decision;  but  on  the  whole  it  may  be 
stated,  that  a  parent  has  no  right  by  the  law  of  nature  to 
disinherit  his  children,  if  they  be  left  helpless,  or  a  burden 
on  society  or  on  friends;  but  if  the  child  has  been  disobe- 
dient, and  be  capable  of  gaining  even  a  rude  subsistence, 
the  parent  may,  consistently  with  the  law  of  nature,  wholly 
disinherit  him.* 

We  have  now  finished  our  notice  of  all  the  topicks  in- 
tended to  be  embraced  in  our  examination  of  the  Rights  of 
Nature. 

In  concluding  the  preceding  lecture,  we  observed  that, 
after  treating  of  the  Rights  of  Nature,  we  should  proceed 
to  inquire  into  the  origin  of  Society,  and  the  various  rea- 
sons which  promoted  and  urged  its  institution;  a  topick 
which  has  been  necessarily  treated,  in  part,  in  the  very 
consideration  of  the  evils  of  a  State  of  Nature,  since  those 
evils  are  amongst  the  most  powerful  causes  of  civil  associa- 
tion. We  shall,  therefore,  show  you  in  the  ensuing  lec- 
ture, the  nature  of  primary  society,  as  distinguished  from 
civil  society,  and  explain  the  origin  of  civil  government. 

*  The  law  of  England  has  strangely  departed  from  the  jus  naturce  in  this 
respect;  for  it  is  understood  to  be  the  undoubted  legal  right  of  parents  in 
that  country,  to  devise  their  entire  estate  to  strangers,  though  their  off- 
spring should  be  left  a  charge  upon  the  publick;  and  it  is  said  that  the 
executors,  who  have  property  in  hand,  cannot  be  called  on  to  relieve  the 
community  from  the  burthen.  On  this  subject  Lord  Alvanley,  in  the  case 
of  Ruwlins  v.  Goldfrap,  reported  in  5  Vesey,  444,  thus  expresses  himself: 
fI  am  surprised  that  this  should  be  the  law  of  any  country,  but  I  am  afraid 
it  is  ihe  law  of  England.' 


LECTURE  IV. 


OF    THE    ORIGIN    OF   PRIMARY    SOCIETY,    AND   OF    CIVIL    GO- 
VERNMENT. 


(l.)  Of  Primary  So-       "We  have  stated  in  the  preceding  lee- 
ciety,  as  distinguish-  h       ft  and     jft   ft  certain 

ed  from  political  or  '  r     i 

civil  society.  sense,  the  natural  state  of  man,  is  that  of 

society.  In  that  state  his  powers  are  best  elicited;  his 
sympathies  have  their  necessary  objects  and  operations, 
and  convert  the  existence  which  was  before  brutish  and 
selfish,  into  an  existence  intellectual  and  generous.  But 
these  advantages  are  not  necessarily  confined  to  civil  so- 
ciety: perhaps  all  the  chief  ends  of  man  might  be  attained 
without  his  ever  entering  into  that  peculiar  species  of  as- 
sociation, or  departing  from  that  state  which,  in  contradis- 
tinction to  civil  or  political  union,  has  been  called  by  natu- 
ral jurists,  simple  or  primary  society;  and  this  certainly 
would  be  the  case,  were  man  less  prone  to  injustice,  and 
to  the  use  of  power  without  regard  to  right. 

You  will  better  understand  this  position,  when  you  dis- 
tinguish with  a  little  accuracy  between  these  two  species 
of  society,  and  consider,  in  the  first  place,  the  definition  of 
a  state,  and  of  a  citizen,  and  then  the  simple  nature  of  that 
primitive  association  of  man  which  has  been  denominated 
primary  society,  and  which  was  certainly  coeval  with  his 
existence. 

A  state,  then,  is  a  combination  of  individuals  for  the 
ends  of  political  government:  a  citizen  is  a  member  of  that. 


Lect.  IV.]  OF    PRIMARY    SOCIETY,    &C.  145 

state,  considered  in  his  capacity  of  making  or  obeying 
laws.  It  is  not  in  his  capacity  of  parent,  husband,  master, 
that  we  call  a  man  a  citizen;  these  are  his  private  relations, 
and  we  distinguish  them  by  that  term  from  his  relations  as 
governor  or  governed,  maker,  minister  or  subject  of  laws; 
in  which  last  relations  only  is  he  properly  called  a  citizen. 

But  man  may  well  associate,  and  even  establish  many 
important  ties  of  union,  without  being  formed  into  any 
civil  society.  Such  Grotius  supposes  was  the  state  of  the 
early  patriarchs,  who  dwelt  in  tents,  and  travelled  from 
place  to  place,  without  any  political  union  whatever.  So, 
also,  Gronovius  is  of  opinion  that  the  first  inhabitants  of 
Italy,  and  some  aboriginal  tribes  of  Africa,  were  in  this 
state  of  simple  union,  or  primary  society,  without  laws  or 
government;  and  the  Getulians,  Cyrenaicans,  and  primi- 
tive Libyans,  are  represented  by  Sallust,  Pomponius 
Mela,  and  other  writers,  as  connected  by  no  other  ties 
than  those  of  parent  and  child,  husband  and  wife;  and  as 
scattered  or  wandering  about  the  country,  often  in  nume- 
rous families  of  children,  grand-children,  and  other  rela- 
tions by  consanguinity  or  marriage.  This  comes  precisely 
up  to  the  notion  of  primary  society. 

It  is  obvious,  indeed,  that  men's  motives  for  this  simple 
association  may  be  very  different  in  themselves,  though 
they  look  towards  the  same  ends.  The  love  of  our  moral 
and  natural  pleasures  would  bring  men  together;  and  the 
fear  of  their  injury  by  some  unworthier  persons,  would 
in  time  induce  their  submission  to  political  union  and 
laws:  the  first  being  done  in  pursuit  of  a  good,  the  second 
in  avoidance  of  an  evil.  Men  would  be  most  happy  to  en- 
joy these  private  relations  without  the  interference  of  laws, 
(whose  partial  operation  is  often  exceedingly  inconvenient, 
and  sometimes  unjust  to  individuals,)  if  a  greater  mischief 
were  not  avoided  bv  this  smaller  sacrifice. 


19 


146  OF    PRIMARY    SOCIETY,  [Lectin 

It  is  probable  that  our  intellect,  our  affections,  and  our 
physical  powers  could  be  as  effectually  and  happily  exer- 
cised without  a  political  association  as  with  it,  if  men 
loved  and  did  justice,  and  had  capacity  to  apprehend  the 
necessity  of  yielding  up  individual  gratification,  in  such  a 
degree  as  is  called  for  by  the  general  good.  The  father 
could  rear  his  child,  and  cherish  its  mother;  the  labourer 
could  till  his  field,  and  the  scholar  cultivate  his  mind,  as 
well  without  these  complicated  systems  of  restraint,  as 
they  have  done  since  their  invention;  and  when  we  consi- 
der how  much  natural  liberty  is  abridged,  and  that  men, 
however  much  the  sport  of  accident,  or  the  slaves  of  cus- 
tom, have  in  the  main  sought  to  promote  their  felicity  by 
their  institutions,  we  shall  be  assured  that  they  have  not 
made  such  sacrifices  without  the  prospect,  or,  at  least,  the 
hope  of  adequate  compensation.  Thus  therefore,  as  we 
have  remarked,  when  it  is  said  that  society  is  essential  to 
man,  we  may  be  said  to  make  two  declarations  in  one,  both 
of  which  are  true  undoubtedly,  but  in  a  different  sense.  It 
is  impossible,  we  think,  to  conceive  of  men  other  than  as 
associated  in  groups,  exercising  their  talents,  and  enjoying 
the  play  of  their  s}'mpathies;  in  other  words,  it  is  impossi- 
ble to  think  of  mankind  otherwise  than  in  a  state  of  at  least 
primary  society;  whereas  it  is  more  easy  to  conceive  him 
apart  from  his  civick  habits,  practising  virtue  without  law, 
and  doing  justice  from  benevolence.  The  one  situation, 
in  fine,  that  of  primary  society,  essentially  arises  from  our 
organization;  the  other,  that  of  civil  society,  appears  wholly 
adscititious,  or  the  accident  of  our  circumstances,  and  the 
offspring  of  our  vices,  rather  than  of  our  virtues. 

In  considering  this  state  of  primary  society  a  little 
further,  we  shall  find  that  there  are  three  principal  relations 
which  subsist  in  it,  and  which  have  been  among  the  chief 
topicks  that  have  engaged  the  attention  of  those  who  have 
treated  of  natural  jurisprudence,  viz.  the  relations  of  hu»~ 


JLect.  IY-1  AND    CIVIL    GOVERNMENT.  147 

band  and  wife;  of  parent  and  child;  and  of  master  and 
servant:  to  some  consideration  of  each  of  which  relations  of 
primary  society,   we  now  propose  to  draw  your  attention. 

1.  Of  the  relation  of  Husband  and  Wife.  Since  states 
are  composed  of  individuals,  and  educe  their  strength, 
among  other  things,  from  the  number  of  these;  and  since 
families,  considered  with  regard  to  the  tie  between  their 
members,  are  also  a  great  support  and  bond  of  communi- 
ties; we  shall  have  occasion  to  consider  marriage,  or  the  re- 
lation between  husband  and  wife,  in  reference  to  these  two 
important  ends;  which  ends,  though  they  appertain  more 
strictly  to  civil  than  primary  society,  we  shall  briefly  con- 
sider at  this  time,  in  connexion  with  this  latter  association, 
because  they  could  not  be  examined  under  any  other  of 
the  heads  we  have  proposed,  and  likewise  because  they 
are,  in  truth,  so  intimately  united  with  the  other  topicks 
of  this  head,  that  they  could  not  conveniently  be  disjoined. 

To  ensure  the  duration  of  a  species  so  noble  in  its  pow- 
ers of  intellect,  and  in  its  capacity  of  happiness,  nature 
has  endued  the  two  sexes  with  a  physical  inclination  for 
each  other.  But  in  order  that  this  inclination  shall  be 
controlled  within  such  bounds  as  will  ensure  the  propaga- 
tion of  the  species,  she  has  chastened  it  with  a  moral  senti- 
ment of  love  and  esteem,  very  different  from  the  emotion 
to  which  we  have  alluded,  and  much  more  durable;  and 
also  with  a  most  tender  affection  for  the  mutual  offspring. 
This  esteem,  however,  can  neither  be  perpetuated  without 
constancy  to  each  other,  nor  can  the  issue  be  so  certain,  or 
so  tenderly  beloved,  unless  promiscuous  intercourse  be  re- 
strained. It  is  on  these  principles  that  matrimony  has  been 
always  regarded  as  essential  to  man's  happiness;  and  is  the 
necessary  offspring  of  association,  or  primitive  societ}7-,  as  it 
is  also  the  first  care  of  civil  and  religious  institutions. 

It  is  not  my  intention  to  enter  into  all  the  considerations 
which  recommend  marriage,  or  even  into  those  more  im- 


148  OF    PRIMARY    SOCIETY",  [Lect.  IV. 

mediately  connected  with  the  topicks  of  the  present  lec- 
ture. I  would  remark,  however,  that  this  is  the  most  im- 
portant relation  of  primary  society;  and  that  it  must  have 
subsisted  before  civil  associations  and  positive  laws,  because 
it  is  a  relation  suggested  by  our  nature,  and  the  very  first 
circumstances  under  which  man  is  placed  after  his  maturity. 
Hence  Kutherforth  defines  marriage  to  be  'a  contract  be- 
tween a  man  and  a  woman,  in  which,  by  their  mutual  con- 
sent, each  acquires  a  right  in  the  person  of  the  other,  for 
the  purposes  of  their  mutual  happiness,  and  of  the  pro- 
duction and  education  of  children.'*  This,  it  is  evident 
enough,  may  as  well  be  made  in  primary,  as  in  civil  so- 
ciety: the  motives,  the  ends,  the  affections  are  the  same  in 
both;  and  though  positive  laws  may  put  restraints  of  va- 
rious kinds  on  the  making  of  the  contract,  or  as  to  its  ter- 
mination, and  enact  many  rules  in  regard  to  the  conduct  of 
the  parties,  it  is  not  the  less  a  relation  of  mere  primary  so- 
ciety. 

The  marriage  contract  is  said  to  differ  from  all  others  in 
this,  that  it  is  necessarily  of  perpetual  obligation,  and  can- 
not, like  all  other  contracts,  be  dissolved  by  the  mutual 
consent  of  the  parties  by  whom  it  Was  made.  This  point 
has  been  argued  by  the  commentator  on  Grotius,  with  his 
usual  ingenuity,  though  perhaps  with  occasional  sophistry. 
The  objects  of  marriage,  and  the  obligations  it  imposes  in 
regard  to  the  offspring,  render  it  indissoluble  by  the  mere 
act  of  the  parties.  Nay,  the  consent  of  the  offspring, 
when  of  full  age,  added  to  the  sanction  of  the  community, 
would  not  justify  the  parties  in  dissolving  the  contract. 
Divorces,  therefore,  are  against  the  law  of  nature.  They 
were  indeed  permitted  by  the  Mosaic  law;  but  the  God  of 
Nature  ordained  this  through  the  Jewish  legislator,  for 
special  reasons;  and  as  the  laws  of  nature  are  of  his  insti- 

•  I  Ruth.  314. 


Lect.  IV  j  A>D    CIVIL    GOVERNMENT.  149 

tution,  he  alone  was  competent  to  allow  the  dissolution  of  a 
contract,  otherwise  perpetual  in  its  obligation.  This  view 
of  the  subject  appears  to  be  confirmed  by  Christ,  who, 
when  he  repealed  the  Mosaic  law  on  this  subject,  expressly 
says,  that  though  Moses  (as  the  minister  of  God)  allowed 
the  Israelites  to  put  away  their  wives,  yet  'from  the  be- 
ginning it  was  not  so.'* 

But  notwithstanding  the  perpetuity  of  this  contract  be 
such,  that  although  it  originates  in  the  consent  of  the  parties, 
it  cannot  be  dissolved  by  their  consent,  yet  there  are  circum- 
stances recognized  by  the  jus  naturse  to  be  of  such  a  cha- 
racter as  to  justify  its  dissolution;  so  that  though  the 
maxim,  applicable  to  all  other  contracts,  that  unumquod- 
que  dissohitur  eo  modo  quo  colligatur,  does  not  apply  to 
the  contract  of  marriage,  yet  it  may  be  terminated  short  of 
the  death  of  one  of  the  parties,  by  the  circumstances  to 
which  we  have  alluded.  Thus,  if  one  of  the  parties  de- 
prive the  other  of  any  essential  and  permanent  right  ap- 
pertaining to  the  contract,  that  other,  being  the  injured 
party,  may  insist  on  its  dissolution.  The  party  doing  the 
injury,  cannot  dissolve  it,  for  this  would  be  acquiring  a 
right  from  his  own  injury,  or  breach  of  a  perfect  obliga- 
tion, which  is  contrary  to  one  of  the  clearest  laws  of  na- 
ture; but  the  injured  party  may  insist  on  its  termination, 
because  it  is  not  in  the  power  of  the  wrongdoer  to  place 
matters  in  statu  quo.  Hence,  for  example,  the  law  of 
nature  recognizes  adultery  as  a  valid  cause  for  the  dissolu- 
tion of  the  marriage,  when  the  innocent  injured  party  in- 
sists on  it.  The  very  definition  of  marriage  shows  that 
adultery  has  deprived  the  injured  party  of  a  perfect  and 
essential  right;  but  even  this  per  se  does  not  dissolve  the 
contract;  it  only  clothes  the  injured  party  with  the  power 
of  dissolving  it.      It    is   perhaps    on   the    same    principle, 

*  Matthew,  chap.  xix.  8,  9. 


150 


OF    PRIMARY     SOCIETY,  [Lect.  IV. 


that  the  Canonists  allow  a  divorce  a  vinculo  matrimonii 
for  previous  corporeal  imbecility,  though,  in  such  cases,  it  is 
rather  on  the  ground  that  no  marriage  in  fact  existed,  than 
that  one  is  '!;«o!ved.  So,  also,  it  is  to  be  remarked  that 
impotentia  sen  frigiditas  renders  the  marriage  voidable 
only,  and  not  void,  for  such  a  marriage  is  valid  as  to  all 
civil  purposes,  unless  the  decree  of  nullity  take  place  in  the 
lifetime  of  the  parties.  It  would  be  out  of  place,  in  this 
institutionary  part  of  our  course,  to  dwell  on  the  subject  of 
divorces;  but  we  may  state  that  the  policy  of  most  coun- 
tries, in  modern  times,  has  been  to  allow  of  no  other  ground 
for  the  actual  dissolution  of  the  contract,  than  adultery;  and 
even  as  to  this,  it  has  been  the  opinion  of  several  learned 
and  philosophical  writers,  that  it  should  be  allowed  only  in 
the  case  of  the  wife's  infidelity,  and  this  distinction  appears 
to  be  countenanced  by  scripture.*  No  power  in  England 
is  competent  to  grant  a  divorce  a  vinculo  for  adultery,  but 
parliament.!  In  regard  to  impotency  prior  to  marriage,  it 
is  regarded  in  several  of  the  states  of  our  union,  as  a  valid 
ground  of  dissolution:^  but  a  contrary  doctrine  has  lately 
been  established  in  the  state  of  New  York.|| 

From  what  has  been  said  it  is  manifest,  that  neither  by 
the  civil  nor  the  natural  law,  can  a  marriage  be  dissolved 
by  consent;  and  that  adultery  is  perhaps  the  only  superve- 
nient cause  for  annulling  a  marriage,  under  the  natural  law. 
Supervenient  frigidity  has  never  been  held  in  England  suf- 
ficient, and  could  only,  if  at  all,  be  sufficient  by  the  lex 
naturse,  under  very  special  circumstances.  Where  the 
spiritual  or  other  courts  grant  a  divorce  a  vinculo  for 
causes  existing  prior  to  the  marriage,  such  as  precontract, 

*  Taylor's  Civil  Law,  240.     Pothier,  Traxle  du  Contrat  de  Mariage  No.  510- 
Matthew,  cha.  six.  8,  9,  10. 
t  Blackstone's  Coram.  441. 

t  1  Hay's  Connecticut  Reports,  112,  Benton  v.  Benton. 
U  1  Hopkins'  Chancery  Reports,  557.  Burtu  v.  Burtis. 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  15l 

fraud,  mental  imbecility,  consanguinity  and  affinity,  it  is 
on  the  principle  that  no  contract  ever  legally  existed,  and 
therefore  that  none  is  actually  dissolved  by  the  decree  of 
divorce.  A  valid  marriage  contract,  therefore,  appears  to 
be  of  perpetual  obligation,  not  only  by  the  natural  law,  ex- 
cept for  adultery,  but  also  by  the  civil  law  of  most  coun- 
tries. When  the  Roman  law,  therefore,  allowed  voluntary 
divorces,  which  were  also  introduced  into  France  by  the 
code  Napoleon,  and  were  virtually  the  law  of  the  Atheni- 
ans, the  jus  natitrse  was  no  doubt  violated.  This,  however, 
was  the  law  of  Rome  from  the  time  of  the  tables  until 
the  full  establishment  of  Catholicism,  with  the  exception  of 
some  restraints  put  upon  its  abuse  by  the  emperor  Augus- 
tus, and  its  temporary  abolition  by  Justinian.  That  this 
divorce  sine  iilld  querela  was  productive  of  much  corrup- 
tion, and  of  the  most  serious  evils  among  the  Romans, 
there  can  be  no  doubt;  and  yet  we  find  that  in  the  novel  of 
the  emperor  Justin,  which  restored  the  ancient  law  of  di- 
vorce sine  causd,  it  is  gravely  asserted  in  substance,  that 
Justinian's  regulation  had  been  productive  of  great  evils 
and  crimes,  and  that  the  freedom  of  divorce  hall  become 
essential!*  By  the  laws  of  most  civil  societies,  there  is  also 
another  species  of  divorce,  called  u,  mensd  et  thoro:  this, 
however,  is  a  mere  legal  separation  of  the  parties  from  bed 
and  board,  and  is  justified  by  the  law  of  nature.  It  does 
not  dissolve  the  contract,  and  is  granted  only  for  such  su- 
pervenient causes  as  do  not  essentially  affect  the  marriage 
contract.  The  parties  thus  separated,  cannot  marry  during 
the  life  of  either;  and  any  issue  born  to  the  husband  after 
such  legal  separation,  is  legitimate.  It  is  allowed  only 
where  one  or  both  of  the  parties  have  evinced  such  dispo- 
sitions and  habits  as  render  it  highly  improper  or  dange- 
rous for  them  to  live  together. 

*  Taylor's  Civil  Latr,  353.     Digest.  24.  S.  34.  157.     Novel  140, 


152 


OF    PRIMARY    SOCIETY,  [Lect.  IV. 


The  perpetuity  of  the  marriage  contract,  considered 
even  in  the  light  we  have  just  stated  it,  has  been  questioned 
by  some,  and  Rutherforth  has  been  thought  to  have  pressed 
the  doctrine  too  far.  We  have  sufficiently  stated  our  rea- 
sons for  thinking  otherwise. 

The  definition  given  of  marriage,  and  the  great  ends 
contemplated  by  that  union,  seem  to  confine  its  validity 
and  its  utility  to  the  alliance  of  one  man  with  one  woman. 
Polygamy  is  generally  inimical  to  the  interests  of  indivi- 
duals and  of  states,  and  this  is  demonstrated  in  nearly  the 
same  manner  as  the  perpetuity  of  the  marriage  contract. 
There  are  circumstances,  however,  which  render  it  less  de- 
plorable in  some  cases  than  in  others. 

Although  polygamy  is  not,  to  our  apprehension,  defensi- 
ble in  any  situation  of  nations,  as  a  general  custom,  there 
are  some  imaginable  cases   where  individuals,   apart  from 
the  general  effect,  would  be  justifiable  in  having  more  than 
one  wife  at  the  same  time.      Utility  therefore,  in  this  as  in 
other  cases,  must  be  the  standard  whereby  to  decide  the 
consistency  of  polygamy  and  monogamy  with  the  law  of 
nature;  and  utility  may  incontrovertibly  demand  both.      It 
is  unnecessary,  and  it  would  lead  to  too  much  detail,  for  us 
to  enter  on  the  arguments  generally  used  in  support  of  this 
position;  for  you  will  discover  in  all  ages,  and  among  all 
people,  the  reception  of  this  sentiment.       We  have  consi- 
dered marriage  as  a  connexiun  incident  to  primary  society, 
and  not  merely  the  creature  of  civil  government,  because 
we  find  it  to  be  essential  to  the  existence  of  the  most  sim- 
ple association   of   man,    and   enjoined   by   considerations 
which  are  as  prevalent  before,  as  after  the  establishment  of 
civil  union.     For  whether  we  consider  it  as  enforced  by 
mutual  affection;  by  the  love  of  our  offspring,  and  the  ne- 
cessity of  nurturing  and  educating  them;  or  by  considera- 
tions of  quiet,  and  the  tempering  of  appetites  which  often 
grow  fierce  by  indiscriminate  indulgence;  marriage  is  not 


Lect.  IV«]  AND    CIVIL    GOVERNMENT.  153 

less  necessary  to  men  living  out  of  the  control  of  govern- 
ment, than  to  those  who  are  subjected  to  numerous  laws, 
and  all  the  refined  regulations  of  policed  societies.    •  Mar- 
riage is  required  by  civil  laws,  not  merely  that  the  law 
may  have  defined  heirs  among  whom  to  distribute  estates, 
or  on  whom  to  bestow  a  throne  or  titles;  nor  merely  be- 
cause there  are  enough  men   born  into  the  world,  allowing 
for  the  'accidents  of  flood  and  field,'  to  afford  a  spouse  for 
each  female;  but  because  it  is  regarded  as  a  dictate  of  the 
law  of  nature,  sanctioned  by  the  civil  law  in  such  a  degree 
and  manner  only  as  comports  with  natural  law;  and  hence 
polygamy  is  generally  regarded  as  adverse  to  its  injunc- 
tions,  and  has  been  no  less  generally  proscribed  by  the 
civil  laws  of  enlightened  nations,  than  by  the  natural  law. 
The  deeper  principles  of  love,  which  allows  no  division  of 
its  empire;  paternal  and  maternal  affection,   whose  original 
charm  springs  from  the  sympathetic  attachment  of  parents; 
temperance  of  appetite,  which  love  teaches  in  the  first  in- 
stance, and  sober  sense  approves  and  confirms;  all  unite  in 
urging  matrimony,   and  pointing  out  to  men  in  all  ages, 
places  and  circumstances,  monogamy,  or  at  least  single  con- 
cubinage, as  in  all  respects  most  suited  to  promote  our  hap- 
piness, and  all  the    ends  of  the  union  of  the  sexes.     Even 
where  polygamy  and  concubinage  are  received,  the  forcible 
voice  of  nature  selects  some  one  as  the  more  beloved  ob- 
ject; and  policy  distinguishes  the  legal  wife  from  the  pur- 
chased slave.     We  find  this  the  case  among  the  Turks  and 
other  Mahometans  at  this  day;  and  it  is  true  of  those  na- 
tions which,  in  an  earlier  age,  occupied  the  same  climates, 
and  allowed  the  same  indulgence.     Even  the  Grand  Seig- 
nior has  his  Sultana,  and  Darius  had  his  Statira;  and  as  the 
law  in  these  countries  requires  a  wife  to  give  an  heir  to  the 
throne,  love  sometimes  selects  from  the  victims  of  tyran- 
nical lust,  some  favourite  who  engrosses  all  its  attentions. 


20 


154  OF    PRIMARY    SOCIETY,  [Leet.  IV, 

The  limits  to  which  we  are  necessarily  restricted,  forbid 
us  to  discuss  at  large  the  various  obligations  imposed  by 
the  natural  law  on  man  to  contract  marriage,  for  the  pur- 
pose of  perpetuating  his  species,   of  rearing  them  in  the 
best  possible  manner,  or  of  consolation  and  protection  to 
the  other  sex,  whose  tender  nature  requires  his  utmost  care 
and  devotion.      Nor  can  we  here  enter  into  the  considera- 
tion of  many  questions  growing  out  of  our  subject,  such, 
particularly,  as  those  which  relate  to  the  invalidity  of  mar- 
riages between  persons  nearly  related  by  consanguinity  or 
affinity;  the  prohibitions  of  the  law  of  nature  as  to  these 
incestuous    connexions;    their    nullity  under  the  levitical, 
the  canon  and  the  common  law,   and  the  laws  of  various 
nations,  ancient  and  modern;  what  marriages,  (if  any)  are 
valid  under  the  lex  naturse,  though  against  Divine  positive 
law,  and  the  received  doctrines  of  sound  policy  and  correct 
morals;  whether   relationship   by  affinity  and   by   consan- 
guinity   ought    not  to   be  distinguished  in   respect  to   in- 
cestuous alliances;  the  true  cause  of  the  subjection  of  the 
wife   to   the  authority    of  the   husband;  whether   consent 
per  se  will  constitute  a  valid  marriage;  in  what  respects 
espousals  differ  from  marriage;  of  the  effect  of  fraud   or 
duress,  idiocy  or  lunacy,  or  the  want  of  proper  age,  on  this 
contract;  of  the  effect  of  marriage  where  one  is  of  compe- 
tent age,  and  the  other  not;  of  the  operation  of  a  mere  pro- 
mise per  verba  cle  futuro,  by  one  of  mature  age,  to  one 
who  is  not;  of  marriages  formed  in  errour  without  fraud ; 
and  very  many  other  questions,  most  of  which  appertain  to 
a  different  part  of  our  course,  and  will  occur  to  you  in  the 
pursuit  of  your  general  and  professional  studies.      You  will 
find,  however,  from  sacred  history,  the  source  of  much  ex- 
cellent knowledge,  that  marriage  is  coeval  with  the  race,  was 
commanded  by  the  Creator,  and  was  respected  as  the  most 
solemn  of  all  contracts;  whilst  general  history  will  show 
you  that  it  has,  in  all  enlightened  countries,  been  based  on 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  155 

the  principles  from  which  we  have  argued  its  necessity  and 
excellence. 

2.  Parent  and  Child  is  the  second  relation  which  is 
found  in  primary  society;  and  this  is  a  topick  which  will 
not  detain  us  long. 

Casuists  have  not  agreed  as  to  the  origin  of  the  dominion 
exercised  by  the  parent  over  the  child,  and  have  sometimes 
referred  it  to  the  mere  act  of  generation;  for,  say  they,  as 
God  is  entitled  to  our  obedience  because  he  created  us,  so 
our  parents,  who  begot  us,  hold  a  rightful  dominion  over 
us,  as  they  were  the  immediate  agents  in  bringing  us  into 
existence.  Both  parts  of  this  proposition,  however,  are 
perhaps  equally  false;  for  as  it  would  seem  that  the  obedi- 
ence due  to  God,  springs  from  our  gratitude  for  the  bles- 
sings with  which  he  has  adorned  life,  and  from  the  sway 
which  he  possesses  over  our  happiness,  and  not  from  the 
mere  act  of  creation;  so  the  dominion  of  parents  is  more 
justly  derivable  from  its  utility  and  necessity,  and  from  the 
obligation  imposed  by  their  tenderness  and  numerous  ser- 
vices, and  by  no  means  from  the  important  agency  they  had 
in  our  production,  in  which  there  can  be  no  merit  what- 
ever, but  positive  unworthiness,  if  it  be  not  succeeded  by 
those  cares  and  offices  in  rearing  the  offspring,  which  can 
alone  fit  them  for  the  rational  enjoyment  of  their  existence. 
On  this  subject,  indeed,  there  ought  to  be  no  collision  of 
opinion.  Paternal  authority,  there  can  be  no  doubt,  is 
founded  on  these  two  titles;  first,  the  injunction  imposed 
on  parents  by  nature,  of  rearing,  and  carefully  watching 
over  the  moral,  religious  and  physical  education  of  their 
progeny,  and  the  impracticability  of  advantageously  dis- 
charging that  duty,  unless  children  yield  implicit  obedience 
to  the  dictates  of  parental  concern,  seeing  that  they  are  not 
of  sufficient  age  and  discretion  to  limit  the  measure  of  their 
submission  or  obedience.  Every  duty  necessarily  implies 
the  rights  essential  to  its  performance.     The  care  of  pa- 


156  OF    PRIMARY    SOCIETY,  [Lect.  IV. 

rents  were  mostly  thrown  away,  if  they  possessed  not  the 
right  of  enforcing;  compliance  with  the  injunctions  which 
that  care  suggests. 

The  second  title  on  which  parental  authority  reposes,  is 
the  presumed  consent  of  the  offspring.  The  parent  shows 
himself  ready,  by  the  care  and  affection  manifested  to  his 
child,  to  watch  over  him,  and  to  supply  all  his  wants,  until 
he  shall  be  able  to  provide  for  them  himself.  The  child,  on 
his  part,  receives  these  acts  of  kindness;  a  tacit  compact 
between  them  is  thus  formed;  the  child  engages,  by  acts 
equivalent  to  a  positive  undertaking,  to  submit  to  the  care 
and  judgment  of  his  parent  so  long  as  the  parent,  and  the 
manifest  order  of  nature,  shall  coincide  in  requiring  assis- 
tance and  advice  on  the  one  side,  and  acceptance  of  them, 
and  obedience  and  gratitude,  on  the  other. 

Puffendorf  remarks,  that  this  doctrine  of  implied  consent 
on  the  part  of  the  child,  has  been  objected  to  as  sup- 
posing a  freedom  of  choice  which  cannot  be  supposed  in  the 
case,  until  he  has  attained  the  age  of  choice.  The  objection 
is  specious;  but  in  this,  as  in  all  other  cases,  reason,  or  the 
law  of  nature,  supposes  a  contract  on  the  part  of  the  child, 
because  it  presumes  a  contract  on  the  part  of  every  indivi- 
dual of  mankind,  to  do  that  which  is  proper  for  the  parti- 
cular interest,  and  conducive  to  the  general  good;  and  in 
this  general  principle  of  utility,  (which,  with  Dr.  Priestley, 
we  assume  as  the  basis  and  measure  of  the  natural  law,) 
may  the  first  ground  also  of  parental  authority  be  included; 
and  thus  are  both  titles,  in  fact,  resolved  into  the  obliga- 
tion of  parents,  and  the  correlative  duty  of  children,  to  do 
nothing  that  shall  impair  the  complete  discharge  of  that 
obligation  which  springs  from  the  natural  fitness  of  things, 
or  acknowledged  utility. 

If  parental  power  arose  not  in  truth  from  these  princi- 
ples, but  from  some  fancied  property  given  to  the  parent 
in  his  offspring,  by  the  act  of  propagation,  it  would   seem 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  157 

to  follow,  as  a  natural  illation,  that  this  authority  would 
appertain  in  the  largest  degree  to  the  mother,  since  she  not 
only  has  the  pains  and  deprivations  incident  to  gestation 
and  parturition,  but  is  the  principal  sharer  in  the  cares 
which  succeed  the  birth.  Yet  it  is  the  father  who  holds 
and  exercises  the  principal  authority,  except  in  the  case  of 
promiscuous  intercourse,  where  the  issue  necessarily  be- 
longs to  the  mother,  as  the  father  cannot  with  certainty  be 
known;  or  where,  in  the  words  of  the  maxim,  t Partus  se- 
quitur  ventrem.' 

Such  being  the  foundation  of  parental  power,  it  remains 
for  us  to  inquire  into  its  extent  and  limits.  No  very  cer- 
tain rule  can  be  given  on  such  a  subject.  Like  the  limits, 
indeed,  of  all  other  government,  its  extent  and  boundaries 
are  prescribed  by  the  good  of  the  subject  over  whom  the 
authority  is  exercised,  and  are  not  to  exceed  what  is  neces- 
sary for  the  due  control  and  discipline  of  the  child.  This 
power  has  been  considered  by  various  writers  to  be  of 
three  kinds,  according  to  the  age  or  condition  of  the  child. 
These  conditions  are,  first,  Infancy;  secondly,  Majority, 
the  child  still  remaining  under  the  parental  roof;  and, 
thirdly,  Majority  and  Separation,  the  child  having  ventured 
into  life,  the  pursuer  of  his  own  fortunes. 

During  the  first  period  only,  can  the  term,  parental 
power,  be  used  with  strict  propriety,  since  at  that  period, 
when  the  judgment  of  the  child  is  naught  or  immature,  the 
constant  and  arbitrary  direction  of  the  parent  is  requisite 
for  his  control  and  preservation.  The  authority  of  the 
parent  is  strictly  parental  only  at  this  period,  because  when 
the  child  reaches  the  second  stage,  viz.  that  of  full  age  and 
mature  judgment,  but  continues  a  member  of  his  parent's 
family,  the  authority  exercised  is  rather  that  of  a  master  of 
a  family,  than  of  a  parent;  and  the  third  period,  viz.  that 
of  separation  from  his  home,  le'aves  no  relation  between 
them,  save  that  of  veneration  for  age,  deference,  gratitude 


15S  OF    PRIMARY    SOCIETY,  [Lect   IV. 

and  respect  for  parents,  on  the  one  hand,  and  a  continuing 
tenderness  and  affection  for  the  offspring,  on  the  other. 

It  is  in  the  first  period,  therefore,  that  the  principal  ques- 
tions arise  regarding  this  species  of  authority;  as,  for  ex- 
ample, whether  the  original  power  over  the  child  is  vested 
in  its  mother,  and  derived  through  her  to  others,  or  whe- 
ther the  paramount  authority  resides  in  the  father;  whether 
parents  may  expose  their  children,  or  deprive  them  of  life, 
for  gross  deformity,  great  imbecility,  their  crimes,  the 
want  of  means  for  their  support,  or  for  any  cause  what- 
ever; whether  paternal  power  may  be  delegated,  and,  if 
so,  to  what  extent;  whether  parents  may  sell  their  chil- 
dren, &c.  all  of  which,  and  many  like  questions,  have 
been  at  various  times,  and  in  different  nations,  gravely  ar- 
gued, and  affirmatively  answered;  and  the  rights  claimed 
under  them,  have  been,  and  still  are  exercised  by  some 
of  them  with  great  severity. 

Paternal  power,  amongst  most  ancient  nations,  was  abso- 
lute, the  child  being  esteemed  the  property  and  slave  of 
the  parent.  Life  and  death  were  at  the  discretion  of  the 
parental  master,  and  the  unnatural  right  of  infanticide  was 
not  only  recognized  as  legal,  but  so  extensively  practised, 
that  among  the  Greeks  the  goddess  Infanticida  was  sup- 
posed to  preside  over  these  atrocious  outrages  on  humanity. 
Even  in  the  present  age,  it  has  been  practised  to  such  an 
enormous  extent  in  some  of  the  eastern  nations,  that,  if  we 
are  to  credit  the  calculation  of  Mr.  Duncan,  there  were  no 
less  than  30,0U0  infants  sacrificed  annually  in  the  peninsula 
of  Guzerat,  and  the  contiguous  provinces  of  Kutch  and 
Sind.  Owing  to  the  laudable  exertions  of  the  East  India 
company,  this  cruel  practice  has  been  considerably  dimin- 
ished in  India,  particularly  in  Guzerat;  though  in  Kutch 
and  Sind  it  still  remains.* 

*  In  a  recent  narrative  of  a  journey  through  the  upper  provinces  of 
India,  by  the  late  Lord  Bishop  of  Calcutta,  the  Rev.  Mr.  Heber,  the  learn- 


Lcct.  IT.]  AND    CIVIL    GOVERNMENT.  159 

3.  Master  and  Servant  is  the  last  relation  of  primary 
society;  in  regard  to  which  it  seems  necessary  to  distin- 
guish between  a  servant  and  a  slave,  though  Puffendorf  and 
others  use  these  terms  indiscriminately. 

A  servant  is  one  who  affords  his  labour  in  consideration 
of  hire,  and  whose  servitude  originates  in  his  own  consent. 
A  slave  is  one  who  is  obliged  to  labour,  and  to  submit  his 
actions  to  the  will  of  the  master,  in  consideration  of  the 
supply  of  the  bare  necessaries  of  life,  his  state  being  gene- 
rally indefinite  in  duration,  and  involuntary  in  its  origin. 

ed  author  speaks  of  female  infanticide  as  still  greatly  practised  in  that 
country.  He  ascribes  the  continuance  of  this  cruel  practice  to  the  united 
operation  of  pride,  poverty,  avarice,  and  a  gross  superstition.  It  is  consi- 
dered highly  disgraceful  in  a  noble  family  to  have  an  unmarried  daughter, 
and  still  worse  to  marry  her  to  one  of  inferior  rank;  whilst  the  poverty 
of  parents  is  often  such  as  to  prevent  their  suitably  portioning  their 
daughters.  Add  to  this,  that  it  is  a  current  belief  among  these  people, 
that  the  'evil  powers'  are  appeased  by  the  sacrifice  of  a  child.  Most  of  the 
females  of  a  family  disappear  in  a  manner  not  exactly  known.  The  popu- 
lar notion  of  the  strangers  in  the  country  is,  that  they  are  usually  drowned 
in  a  large  vessel  of  milk,  immediately  after  their  birth:  And  others  say 
that  they  are  destroyed  by  opium.  In  the  island  of  Ceylon  alone,  the 
census  of  1821  showed  an  excess  of  20,000  males  over  females;  and  in 
some  districts  the  proportion  of  the  latter  to  the  former  does  not  exceed 
one  half.  It  is  said  that  on  the  birth  of  a  female,  an  astrologer  is  consult- 
ed, and  the  child  is  inevitably  sacrificed  if  it  be  pronounced  to  have  been 
born  under  evil  auspices. 

Mr.  Heber  thinks  that,  notwithstanding  the  great  exertions  of  Major 
Walker  at  Guzerat,  the  number  saved  is  small,  compared  to  that  of  the  vic- 
tims. He  relates,  however,  that  'previously  to  Major  Walker's  departure 
from  Guzerat,  he  received  the  most  affecting  compliment  which  a  good 
man  could  receive,  in  being  welcomed  at  the  gate  of  the  palace,  on  some 
publick  occasion,  by  a  procession  of  girls  of  high  rank,  who  owed  their 
lives  to  him,  and  who  came  to  kiss  his  clothes,  and  throw  wreaths  of  flow- 
ers over  him  as  their  deliverer  and  second  father.  Since  that  time,  how- 
ever, things  have  gone  on  very  much  in  the  old  train,  and  the  answers 
made  by  the  chiefs  to  any  remonstrances  of  the  British  officers  is,  lPay 
our  daughters'  marriage  portions,  and  they  shall  live!''  Yet  these  very  men, 
rather  than  strike  a  cow,  would  submit  to  the  cruellest  martyrdom. — 2  He- 
fcer's  Aarr.  69.  192. 


160  OF    PRIMARY    SOCIETY,  [Lect.  IV. 

The  state  of  mere  servitude  is  therefore  easily  ac- 
counted for  in  primary  society,  and  might  have  its  rise  in 
any  the  most  primitive  state  of  man,  as  well  as  in  commu- 
nities of  regular  government  and  laws;  since  it  might 
arise  under  any  circumstances  which  rendered  difficult  the 
obtainment  of  a  livelihood,  there  being  nothing  strange  in 
a  man's  giving  his  labour  to  another,  in  consideration  of 
some  desired  equivalent. 

But  slavery  must  arise  from  different  circumstances, 
perhaps  was  wholly  unknown  to  primary  society,  and  is 
more  difficultly  reconciled  to  the  law  of  nature  if  indeed 
it  be  at  all  reconcileable  to  it.  This,  among  casuistical  ju- 
rists, has  always  been  a  topick  of  considerable  difficulty. 
We  cannot,  for  instance,  impute  slavery  to  the  legitimate 
exercise  of  superior  minds  over  those  which  are  confes- 
sedly inferior,  since  every  man  is  essentially  free  to  direct 
his  own  actions,  however  incompetent  he  maybe  to  it,  un- 
less he  be  an  infant,  an  idiot,  or  a  lunatic.  Nor  can  we 
resort  to  the  notion  of  Mr.  Hobbes,  that  the  natural  state 
of  man  being  that  of  warfare,  any  one  has  a  right  to  in- 
vade another,  and  reduce  him  to  slavery  by  the  right  of 
conquest.  So,  also,  the  position  of  Puffendorf  and  others, 
that,  as  an  enemy  in  a  war  just  on  one  side,  may  fairly  be 
killed,  so  the  victor  may  make  his  bargain  with  him,  giving 
him  life  on  condition  of  perpetual  servitude  or  slavery, 
seems  extremely  questionable.  It  must  be  allowed  that 
there  are  innumerable  wars  where  the  vanquished  are  not 
so  much  in  fault  as  to  merit  a  punishment  so  severe  and 
lasting.  But  the  right  to  reduce  to  slavery  is  said  to  be 
founded  on  the  right  to  destroy  life  in  a  just  war.  No  such 
right  exists,  we  apprehend,  except  dum  fervet  opus, 
whilst  the  battle  rages,  or  in  very  special  cases.  If  such 
cases  exist,  it  would  be  very  questionable  whether  those 
could  be  so  considered,  where  the  victors  could  with  pro- 
priety commute  the  punishment  from  death  to  slavery;  for 


J 


Lect.  IV.]  OF    CIVIL    GOVERNMENT.  161 

this  very  right  of  depriving  the  vanquished  of  life,  would 
seem  to  occlude  those  facts  and  circumstances  which  would 
render  it  proper  to  grant  them  life  on  any  terms.  Per- 
haps the  only  case  in  which  slavery  would  be  justifiable,  is 
one  which  in  fact  can  hardly  be  supposed  to  occur  in  pri- 
mary society,  or  indeed  in  any  relation  of  man:  it  is 
where  a  body  of  men  have  shown  dispositions  so  hostile  to 
others,  that  it  is  requisite  to  the  safety  of  the  last,  that  the  first 
shall  be  separated  and  restrained.  Now  such  a  case  can  scarce 
be  supposed  before  the  institution  of  civil  government;  for 
in  primary  society  there  could  hardly  be  a  body  of  ill  dis- 
posed individuals  so  numerous  as  to  require  such  disper- 
sion, nor  such  an  association  of  injured  persons  as  could 
serve  the  purpose  of  dividing  them,  and  thus  coercing 
their  good  behaviour.  And  where  the  societies  are  politi- 
cal, other  means  could  perhaps  be  in  all  cases  resorted  to. 
The  right  of  slavery,  if  it  exist  at  all,  must,  we  suppose, 
be  founded  on  the  necessity  for  security  or  for  punishment, 
or  for  both.  Now,  if  individuals,  or  large  families,  (for 
we  cannot  suppose  any  other  injured  entities  in  primary 
society)  were  to  detain  persons  in  slavery,  it  is  difficult  to 
imagine  how  the  mere  end  of  security  could  be  reached, 
such  security  being  generally  the  result  of  the  superiority 
of  the  victors  in  number  and  power.  If  we  proceed  on  the 
principle  of  punishment,  this  will  hardly  excuse  an  unli- 
mited enslavement,  as  punishment  is  to  answer  the  ends  of 
correction  to  the  individuals,  and  example  to  others,  and  is 
necessarily  limited  in  its  nature,  because  it  is  supposed  to 
be  proportioned  to  the  injury  or  crime.  In  short,  the  prin- 
ciples both  of  security  and  punishment  are  limited,  because 
they  should  be  adjusted  to  the  case,  and  cannot  justify 
what  is  admitted  to  be  perpetual  in  duration,  and  with  no 
other  bound  but  the  will  of  the  master.  But  the  case 
which  is  generally  supposed  to  be  the  foundation  of  sla- 
very,  is  compounded  of  these  principles,  and  also  of  a  sub- 
21 


162  OT   PRIMARY    SOCIETT,  [Lect.  IV 

sequent  necessity  which  their  exercise  is  supposed  to  in- 
duce.  Thus,  a  community  being  harrassed  perpetually  by 
another  of  essential^  predatory  or  restless  habits,  sees  no 
other  security  than  subduing  them,  dividing  them  among 
themselves,  and  exercising  a  scrutiny,  and  a  discretionary 
power  over  them.  Afterwards,  they  know  not  how  to  get 
rid  of  them,  for  they  can  neither  release  them,  send  them 
abroad,  nor  admit  them  to  equal  privileges  at  home;  a  situ- 
ation necessarily  productive  of  hostility  on  the  part  of  the 
slave,  and  of  augmented  severity  on  the  part  of  the  master- 
But,  to  say  nothing  of  the  many  innocent  persons  involved 
in  an  indiscriminate  punishment  of  this  sort,  it  is  obvious 
enough  that  there  are  various  other  preferable  methods  of 
security;  such  as  giving  them  in  the  first  instance,  or  after  a 
time,  a  limited  privilege  of  citizenship;  dividing  them  into 
very  small  communities  remote  from  each  other,  yet  retain- 
ing their  liberty;  and  many  others,  short  of  either  of  the 
plans  mentioned,  but  which  would  answer  the  end  pn>- 
posed.  The  above  remarks  are  founded  on  the  supposi- 
tion that  it  is  a  body  of  persons  that  are  thus  reduced  to 
slavery,  by  another  body  of  persons.  Let  us  now  see  how 
the  case  stands  between  individuals.  I  am.  let  us  suppose, 
an  individual  in  a  state  of  nature,  and  have  accumulated  by 
labour  or  skill,  some  quantity  of  the  necessaries  of  life. 
An  unjust  man  assaults  my  life,  and  carries  off  the  fruits  of 
my  toil  and  skill;  I  pursue  and  capture  him;  and  as  re- 
venge is  not  less  forbidden  by  the  law  of  nature,  than  by 
the  revealed  law  of  God,  I  detain  him  for  the  two  purposes 
of  punishment  and  reparation.  The  punishment  must  be 
proportioned  to  the  correction  to  be  made,  and  the  exam- 
ple to  be  enforced;  and  the  reparation  must  be  made  to  the 
amount  of  the  property  taken  from  me,  and  the  actual  dam- 
age which  I  have  sustained.  I  have  therefore  a  right  to 
restrain  the  liberty  of  this  individual  so  far  as  may  be  ne- 
cessary for  the  purposes  of  punishment;  and.  also,  to  direct 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  163 

his  labour  to  my  use  until  I  am  fully  compensated.  This, 
and  this  only,  is  the  measure  of  the  right  of  war  and  con- 
quest; a  measure  which,  it  is  obvious,  is  far  from  reaching 
to  the  extent  of  rightfully  enslaving  the  captive,  that  is,  of 
giving  to  the  conqueror  an  unlimited  dominion  over  his 
person,  his  actions,  and  his  property,  however  it  might 
sometimes  happen  that  the  offender's  whole  life  might  be 
insufficient  to  atone  for  the  injury,  or  repair  the  damage. 
Let  us  now,  in  a  few  words,  consider  the  situation  of  the 
offspring  of  an  enslaved  enemy.  These,  it  is  conceded,  are 
not  participators  in  the  offence  of  their  parents,  and  there- 
fore the  same  reasoning  is  altogether  inapplicable  to  them. 
How,  then,  is  the  retention  of  these  in  perpetual  bondage 
to  be  defended?  Can  it  be  said  that  there  is  a  contract  on 
the  part  of  the  infant  slave,  with  the  master,  as  of  the  child 
with  his  parent,  to  remunerate  him  for  his  care  and  expense 
in  rearing  him?  We  think  not:  for  between  parent  and 
child  there  is  no  actual  consent;  it  is  merely  presumed  from 
the  heavy  debt  of  gratitude,  tenderness  and  affection  due 
by  the  child;  and  also  from  the  moral  fitness  of  things, 
which  demands  obedience  in  order  to  enable  the  parent  to 
discharge  his  duty.  But  such  an  implication  cannot  well 
be  presumed  in  the  case  of  the  infant  slave;  for  he  has  re- 
ceived no  such  tenderness,  careful  nurture,  or  expensive 
support;  and  if  all  this,  and  much  more,  had  been  practised 
towards  him,  the  obligation  would  not  be  that  of  slavery 
for  life.  Still,  however,  two  considerations  have  been 
urged  regarding  this  point;  first,  that  the  claim  for  remu- 
neration, which  I  have  mentioned  to  be  one  of  the  ends  of 
slavery,  might  survive  the  parent,  though  the  right  of  pun- 
ishment would  not;  and  secondly,  that  as  the  only  induce- 
ment of  the  master  to  preserve  the  life  of  the  infant  slave, 
whose  parents  can  subserve  no  interest  save  their  master's, 
is  the  hope  of  eventual  profit  from  his  labour,  the  law  of 
nature  may  be  sn^nosed  to  raise  a  duty  on  the  side  of  the 


|64  °F    PRIMARY    SOCIETY.  [Lect.  IV. 

slave,  to  repay  by  his  services  the  preservation  of  a  life 
which  would  otherwise  have  been  disregarded;  and  this 
might  be  called  the  policy  of  the  law  of  nature.  The 
whole  of  this  reasoning  appears  to  me  entirely  fallacious. 
The  claim  to  reparation  may,  indeed,  survive;  but  only  so 
far  as  to  give  the  master  a  claim  to  any  property  the  slave 
may  possibly  have  accumulated,  and,  even  then,  only  so 
far  as  the  original  debt  may  have  remained  unsatisfied;  but 
this  surviving  claim  cannot  per  se  be  a  personal  charge  on 
his  offspring.  As  to  the  supposed  inducement  of  the  mas- 
ter to  preserve  the  life  of  the  infant  slave,  and  the  ima- 
gined policy  of  the  natural  law,  nothing,  it  appears  to  me, 
can  be  more  sophistical  and  erroneous.  It  is  founded  on 
an  assumption  that  the  master  can  rightfully  be  regardless 
of  the  lives  of  such  persons,  (whose  parent  he  certainly 
must  have  taken  cum  onere;)  and  also  on  the  supposition 
that  he  has  such  an  exclusive  right  to  the  enslaved  parent's 
labour,  that  such  parent  is  not  entitled  to  have,  and  to  rear 
children;  and,  further,  that  the  law  of  nature,  like  human 
laws,  can  compromise  for  wrong  on  principles  of  policy:  all 
of  which  positions,  we  apprehend,  are  erroneous,  and  have 
been  so  considered  in  the  preceding  lecture,  when  we  had 
occasion  to  speak  of  the  unalienable  nature  of  some  of  our 
rights. 

We  have  now  briefly  examined  the  three  great  relations 
of  primary  society,  or  that  primitive  association  which 
would  be  essential  to  the  happiness  of  man,  how  much  soe- 
ver his  desire  to  do  justice  might  render  civil  government 
and  laws  unnecessary. 

We  now  proceed  to  the  remaining  topicks  of  the  pre- 
sent lecture. 


Met.  IV.]  AND    CIVIL    GOVERNMENT.  165 

(2)  Of  the  Motives       After    the    establishment    of    primary 
which  induced  men  society   the  transition  to  that  of  political 

to  establish  civil  so-  l 

ciety    and    govern-  government  and  laws  has  been  variously 

ment"  accounted  for;  and  different  writers,  an- 

cient and  modern,  have  supported  their  respective  theories 
with  zeal,  and  often  with  great  ingenuity.  Before  we  exa- 
mine these  theories,  we  would  remark  first,  that  it  has 
been  at  all  times  a  fruitful  source  of  errour,  that  theorists 
are  so  prone  to  build  their  system  on  some  single  or  ele- 
mentary principle,  instead  of  taking  an  extended  view  of 
their  subject,  and  seeking  for  its  solution  in  the  operation 
of  a  multiplicity  of  causes.  This  desire  to  refer  an  effect, 
originating  in  complex  causes,  to  a  simple  principle,  ap- 
pears almost  innate;  for  it  will  be  found,  on  examining  va- 
rious theories  in  physicks,  and  morals,  that  scarcely  any  of 
their  authors  have  been  content  to  rear  their  system  on  the 
resulting  effect  of  concurring  causes,  but  have  imagined 
that  their  argument  loses  the  character  of  theory,  and  the 
charm  of  novelty,  if  they  solve  their  problem  by  reference 
to  all  the  circumstances  which  may  possibly  combine  to 
produce  a  single  result.  This  notion  of  simplifying  the 
composite  machinery  of  nature,  and  of  attributing  to  one 
cause,  what  may  have  arisen  from  an  infinite  number,  of 
minute  operation,  has,  no  doubt,  been  the  source  and  per- 
petuation of  most  of  the  visionary  systems  which  have 
been  the  reproach  of  learning  and  philosophy  in  all  ages. 
We  know  that  the  human  mind  is  composed  of  faculties 
extremely  implex  and  delicate  in  their  operations,  but  in 
which  the  most  wonderful  and  undeviating  harmony  is  pre- 
served. All  -its  parts  have  a  dependence  on  each  other 
strictly  reciprocal;  and  no  spring  of  this  admirable  piece  of 
mechanism  can  be  set  in  motion,  without  in  some  degree 
exercising  all  the  others,  however  minute  and  insignificant 
they  may  appear  to  be  in  the  great  whole.  An  attempt, 
therefore,  to  refer  most  of  the  operations  of  the  human 


166  OF    PRIMARY    SOCIETY,  [Lect  IV. 

mind  and  heart  to  a  single  source,  or  to  derive  from  one 
spring  of  action,  effects  depending  on  a  complication  of 
causes,  is  highly  irrational,  and  has  generally  proceeded 
from  an  overweening  zeal  in  support  of  some  favourite 
theory.  The  second  remark  which  we  have  to  make,  be- 
fore we  inquire  into  the  opinions  advanced  as  to  the  origin 
of  civil  governments,  is  that  the  foundation  which  we  adopt 
as  the  main  guide  in  ascertaining  the  law  of  nature,  is  utility: 
in  other  words,  the  mischief  that  would  result  fro:n  the 
disobedience  of  its  dictates,  is  the  sanction  of  the  law  of 
nature.  It  must,  however,  be  quite  evident  to  all,  that  this 
general  utility  is  neither  always  discernible  to  men  without 
government  and  laws,  nor  is  always  correctly  argued  from 
by  casuists  themselves,  nor  alterable  as  circumstances  and 
necessities  vary.  There  is  generally  this  difficulty  in  de- 
termining the  justice  of  an  act,  under  the  natural  law,  viz. 
that  what  men  were  designed  to  be,  and  what  they  invaria- 
bly are,  seem  to  require  two  distinct  measures  of  action;  a 
difference  to  which  the  most  virtuous  casuist  cannot  be  en- 
tirely insensible.  Thus,  for  example,  the  retention  of  the 
offspring  of  a  slave,  we  have  just  seen,  has  been  attempted 
to  be  justified  on  a  supposed  policy  of  the  law  of  nature,  in 
order  to  avoid  a  greater  evil.  This  would  certainly  present 
a  dilemma,  about  which  the  virtuous  and  considerate  might 
innocently  differ.  "We  think,  however,  the  case  is  free  of 
difficulty,  and  that  no  such  policy  exists.  It  is  conceded 
that  no  right  can  be  founded  in  an  injury;  and  such  an  ac- 
quiescence of  the  law  of  nature  would  be  an  indirect  sanc- 
tion of  that  which  in  itself  is  clearly  a  violation  of  justice. 
Others,  however,  are  equally  confident  that  such  a  policy 
must  be  consistent  witli  the  lex  nalurse,  because  so  great 
an  evil  might  unavoidably  arise  from  denying  to  the  master 
any  interest  in  the  infant  slave.  Variety  of  opinion  often 
preponderates  on  the  side  of  errour,  and  truth  is  sometimes 
obscured,  for  a  time,  by  the  voice  of  even  general  opinion 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  167 

against  her,  and  this  too  in  matters  even  of  feeling,  consci- 
ence, and  ohvious  reason.  But  it  is  full  time  that  we  now 
proceed  to  direct  your  attention  to  various  opinions  assigned 
by  authors  as  to  the  origin  of  civil  or  political  government, 
and  laws.  This,  together  with  the  obligation  to  it,  it  will 
presently  be  seen,  we  refer  in  a  great  degree  to  the  utility 
we  have  just  spoken  of,  and  which  we  shall  have  occasion 
fully  to  explain  hereafter. 

1.  Divine  Command.  Some  have  contended  that  the 
first  institution  of  civil  society  and  government,  was  in 
compliance  with  a  divine  command.  They  suppose  that 
Adam  was  invested  by  Deity  with  supreme  political  au- 
thority over  all  his  progeny,  and  that  the  right  of  govern- 
ment descended  as  an  inheritance  in  the  elder  lines  of  the 
several  branches  of  his  family.  That  this  is  a  hypothesis 
wholly  destitute  of  historical  support,  is  very  evident,  as 
we  can  refer  to  no  other  source  than  the  Bible,  and  no  such 
doctrine  is  there  to  be  found.  Independently,  however, 
of  the  absence  of  historical  evidence  on  this  point,  we  can 
see  no  occasion  to  have  recourse  to  this  intervention  of  di- 
vine command,  since  there  is  clearly  a  sufficient  obligation 
urging  the  establishment  of  such  societies,  arising  from  the 
numerous  benefits  which  flow  from  them,  and  the  avoi- 
dance of  many  evils  which  obtain  without  them;  nor  is  it 
ever  philosophical  to  impute  any  effect  to  divine  agency, 
which  can  be  otherwise  satisfactorily  accounted  for. 

2.  The  Social  Principle.  A  second  theory  supposes 
men  originally  solitary  animals,  wandering  in  the  woods 
and  fields  in  search  of  food,  and,  like  the  beasts  of  the  fo- 
rests, occasionally  meeting  in  their  excursions.  Finding 
from  this  casual  intercourse,  that  they  could  be  reciprocally 
advantageous  to  each  other,  and  nature  having,  in  fact,  im- 
planted in  them  certain  social  affections,  they  thus  formed 
those  simple  associations,  which,  in  process  of  time,  be- 
came subjected  to  a  few  plain  regulations,  chiefly  in  refer-- 


163  OP    PRIMARY    SOCIETY,  [Lcct.  IV. 

ence,  perhaps,  to  hunting,  the  division  of  their  spoil,  the 
sanctity  of  their  humble  habitations,  and  such  like;  and 
finally  matured  into  regular  governments  or  nations. 

3.  Sense  of  Impotenct.  Another  hypothesis  on  this 
subject,  assumes  that  men  are  the  most  helpless  of  all  ani- 
mals; that  it  was  not  the  social  principle  which  first  induced 
them  to  come  together,  but  a  sense  of  impotency,  a  know- 
ledge of  their  total  inability  to  sustain  themselves  sepa- 
rately against  the  inclemencies  of  the  seasons,  the  ferocity 
of  animals,  the  inroads  of  hunger  &c;  and  that  laws,  and 
political  government  were  coeval  with  the  first  associations 
of  man;  or,  in  other  words,  that  a  state  of  primary  society 
perhaps  never  existed,  but  that  the  earliest  associations 
were  political,  though  they  may  have  been  extremely  sim- 
ple, and  scarcely  distinguishable  from  primary  society,  in 
the  sense  in  which  we  have  described  it. 

4  Natural  Hostility.  The  theory  of  greatest  note, 
is  that  of  the  celebrated  Ilobbes,  which  makes  the  original 
principle  of  all  societies  to  be  fear,  and  a  natural  hostility 
of  man  against  his  species.  This  doctrine  supposes  that 
some  men  united  for  defence,  and  others  for  aggression; 
that  as  mankind  are  naturally  enemies  to  each  other,  they 
soon  found  that  their  schemes  of  opposition  and  plunder 
were  better  promoted  by  a  union  of  action;  and  that  this 
being  the  case,  those  who  were  attacked  would  in  turn 
unite  for  their  defence.  If  Mr  Hobbes's  notion  be  cor- 
rect, it  is  not  very  material  to  inquire  whether  the  first 
communities  were  aggressive  or  defensive.  We  cannot, 
however,  agree  with  a  late  sensible  writer  on  Political 
Economy,  Mr  Raymond,  that  the  first  associations  must 
necessarily  have  been  for  the  purposes  of  aggression.  He 
appears  to  have  adopted  this  idea  of  natural  hostility  to  its 
utmost  extent.  'It  is  very  clear,'  says  he,  'that  aggression 
must  precede  defence,  and  that  before  communities  could 
have  been  formed  for  defence,  there  must  have  been  others 


Lect.  IV]  AND    CIVIL    GOVERNMENT.  169 

formed  for  aggression.  Had  there  been  no  such  thing  as 
attack,  men  would  never  have  thought  of  defence.  The 
primary  object,  therefore,  in  forming  the  social  compact; 
must  have  been  plunder,  and  the  first  article  of  that  com- 
pact no  doubt  was,  'we  will  plunder  our  neighbours.'  The 
second  article  probably  was,  'we  will  not  plunder  each 
other:'  this  article  was  necessary  to  enable  them  to  carry 
the  first  into  effect.  Other  articles  were  afterwards  added, 
as  the  occasions  and  necessities  of  the  society  required, 
until  the  social  compact  has  increased  to  ils  present  form 
and  dimensions.'*  This  view  of  the  subject  by  our  coun- 
tryman, is  perhaps  an  extension  of  the  theory  of  Mr 
Hobbes  beyond  the  limits  designed  by  that  learned  but 
misguided  philosopher.  He,  indeed,  considered  men  in- 
clined to  rob  and  oppress  each  other;  but  it  is  not  a  legiti- 
mate inference  from  his  theory,  that  political  associations 
were  first  formed  for  the  express  object  of  aggression  and 
plunder:  for  the  evil  dispositions  of  men  may  reasonably 
be  supposed  to  have  induced  the  better  disposed  among 
them  to  unite  for  the  purposes  of  defence,  or  even  to  regu- 
late their  own  evil  habits  and  propensities,  after  their  expe- 
rience had  taught  them  that  there  was  no  safety  nor  tran- 
quillity, if  the  uncontrolled  indulgence  of  predatory  war- 
fare were  not  checked.  But  be  this  as  it  may,  there  are  few, 
if  any,  in  this  enlightened  day,  who  will  concur  with  Mr 
Raymond  in  a  doctrine  which  places  our  species  in  an  as- 
pect still  more  hideous  than  that  in  which  we  find  it  in 
the  description  of  Mr  Hobbes.  We  do  not  perceive  the 
necessity  of  supposing  that  the  first  political  communities 
were  formed  for  plunder.  It  is  true,  no  doubt,  that  defence 
must  be  preceded  by  aggression,  and  that  no  defensive  com- 
munities could  have  been  formed  unless  there  had  been 
previous  aggression;  but  there  is  no  need  that  this  should 

*  Raymond's  Political  Economy,  vol.  1.19- 
22 


170  OF    PRIMARY    SOCIETY,  [Lcct.  IT 

be  of  communities,  and  they,  too,  formed  expressly  for  as- 
saults. May  not  individuals  or  families  have  manifested 
those  evil  and  aggressive  dispositions  which  would  give 
rise  to  communities  for  defence;  and  if  so,  may  not  the 
first  civil  associations  have  been  formed  merely  for  defence 
against  such  individuals  and  families?  The  whole  ques- 
tion is,  whether  defence  or  aggression  was  the  cause  of 
civil  union;  and  to  infer  the  latter  merely  from  the  princi- 
ple, that  aggression  must  precede  defence,  is  a  manifest  so- 
phism, by  departure  from  the  point,  in  controversy:  it  is 
what  logicians  calls  ignoralio  eluchi,  since  if  the  postu- 
late be  admitted,  as  it  must  be,  that  aggression  precedes 
defence,  still  it  goes  no  way  to  justify  the  conclusion  that 
the  aggression  was  that  of  a  community,  as  it  ma)7  have 
preceded  from  individuals,  whilst  those  who  were  injured* 
may  have  associated  for  defence,  and  thus  originated  the 
first  civil  communities. 

The  truth,  no  doubt,  is,  as  is  generally  the  case  in  such 
controversies,  that  these  societies  were  formed  neither  for 
the  one  nor  the  other  purpose  solely.  Men  may  have 
united  from  a  great  variety  of  causes,  such  as  relationship, 
social  propensities,  the  advantage  of  union  in  labour  &c. 
and  even  if  men  are  natural  enemies  to  each  other,  they 
are  also,  as  we  know,  reasoning  beings,  and  may  therefore 
have  easily  arrived  at.  the  conclusion,  that  an  association  of 
numbers  of  their  own  species,  under  certain  simple  regula- 
tions, might  be  productive  of  much  advantage.  The  theo- 
ry of  natural  enmity  is,  indeed,  a  shocking  and  disgusting 
view  of  the  character  of  that  being  which,  on  earth,  is  the 
only  one  endued  with  reason,  and  capable  of  society.  Wo 
had  hoped  the  day  was  past,  when  any  of  the  cold  and  sul- 
len sophistry,  or  the  wild  and  incomprehensible  figmeuts 
of  Mr  Hobbes,  could  have  found  an  advocate. 

5.  The  Urgency  cf  our  Wants.  A  fifth  theory  has 
accounted  fcr  the  origin  of  societies  wholly  from  the  se- 


L*ct.  IV.]  AND    CIVIL    GOVERNMENT.  171 

verity  of  our  wants  in  primary  society,  as  well  as  in  a 
state  of  nature.  A  thousand  urgent  calls,  which  men  or 
families  unallied,  however  much  they  toiled,  could  not 
have  provided  for,  must  have  linked  them  together;  and 
a  thousand  pleasures  to  which  we  are  naturally  addicted, 
would  have  subsequently  cemented  the  society  thus  formed. 
That  these  considerations  would  have  united  men,  and 
given  rise  to  political  regulations,  cannot  be  doubted;  and 
if  the  state  of  nature  ever  existed,  its  miseries  must  have 
urged  men  to  society  and  law,  unless  mankind  had  been 
separated  by  a  repulsive  principle  of  which  we  can  per- 
ceive no  traces  in  the  present  nature  of  our  species.  * 

6.  Sexual  Passion.  The  merit  of  originating  society 
and  government  has  also  been  ascribed  to  the  attachment 
of  the  sexes.  The  mode  in  which  this  proclivity  of  our 
nature  operated  in  producing  this  effect,  must  have  been, 
we  presume,  somewhat  after  the  following  manner.  The 
sexes  were  first  brought  together  by  the  influence  of  sex- 
ual passion,  allowing  that  to  have  been  the  sole  attraction 
to  union:  marriages,  with  all  their  consequences,  would  en- 
sue: the  numerous  ties  of  relationship  would  bring  num- 
bers together,  and  extend  the  dominion  of  family  affection 
and  influence:  the  social  principle  would  be  set  in  opera- 
tion, and  give  rise  to  friendships  among  many,  beyond  the 
limits  of  blood  and  affinity:  all  these  would  unite  for  every 
purpose  of  common  interest:  these  objects  of  union  would 
require  rules  for  their  regulation;  and  as  they  increased  in 
importance,  more  permanent  confederacies  would  be  esta- 
blished, and  thus  give  rise  to  regular  governments  and 
laws. 

7.  The  Love  of  Knowledge.  This  has  likewise  been 
regarded  by  some  as  the  foundation  of  civil  union.     Its  ad- 

*  This  view  of  the  subject  differs,  if  at  al!,  but  little  from  the  third  one, 
which  refers  the  origin  of  society  to  a  sens3  of  impotency. 


172  OF    PRIMARV    SOCIETY,  [Lect.  IV 

vocates  have  not  been  very  explicit  in  stating  the  modus 
operandi  by  which  man's  thirst  for  knowledge  terminates 
in  such  an  important  result.     We  may  suppose  it  to  have 
been  thus.      Man,  as  we   know,  is   a   being  endowed  with 
observation  and  reason:    these  beget  curiosity,  or  a  desire 
for  knowledge.      Man  awakens  the  curiosity  of  man,  and 
would   be  as  likely  to  be  observed  and  studied   by  man,  as 
any  other  object  in  nature,  and  even  more  so,  as  the  simi- 
larity of  his  ostensible  nature  and  pursuits  would  excite 
a  livelier  interest.     This  desire  for  some  knowledge  of  our 
species,  would  bring  men  together:  friendships,  marriages, 
common  enterprises,  and,  in  fine,  primary  societies,  would, ti 
soon   be  formed:  knowledge  on  various  subjects  would  be 
desired:  the   general   mind  would   expand:   the  objects   of 
curiosity  and  research  would  greatly  multiply:  these  could 
not  be  advantageously  pursued  without  union  of  action,  and 
the  adoption   of  some  rules:    these  rules  would   multiply, 
until   their  enforcement  and   exposition  would   demand   a 
common  force,  and  a  common  tribunal.     Some  distinguish- 
ed expositor  of  these  rules  would  gain  an  ascendency:  his 
worth  and  talents  would  gain  him  authority:  he  becomes  a 
governor,  and  perhaps,  finally,  a  king. 

8.  Patriarchal,  Government.  The  last  theory  we 
are  aware  of  is,  that  nations  arose  from  patriarchal  govern- 
ment. This  supposition  appears  to  us  the  most  probable, 
and  is  the  best  sustained  by  the  early  history  of  our  species. 
Patriarchal  government  consisted  in  the  fathers  of  families, 
and  their  first  born  after  them,  exercising  civil,  ecclesiasti- 
cal and  economical  authority  in  their  respective  house- 
holds. The  simplicity  of  primary  society  in  all  countries, 
and  in  all  ages,  would  require  no  other  power  than  that  of  a 
father  of  a  family  over  those  under  ihe  same  roof:  but  the 
patriarchal  government  to  which  we  allude,  is  that  which 
obtained  among  the  Jews  from  their  earliest  history,  until 
their  settlement  in  Egypt.      During  their  residence  in  the 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  173 

land  of  Canaan,  they  had  no  form  of  civil  or  political  go-  / 
vernment.  The  fathers  of  families  exercised  sovereign 
power  over  their  children,  who  were  disinherited  by  them, 
or  punished  with  death,  or  dismissed  from  their  homes,  or 
blessed  or  cursed,  as  the  parent  should  determine,  without 
any  interference  by  any  foreign  power  whatever.  These 
patriarchs  even  concluded  solemn  treaties  with  the  petty 
kings  who  had  dominion  in  various  parts  of  Palestine,  and 
vveie  considered  their  equals  in  dignity  and  power.  On  the 
death  of  a  parent,  his  eldest  son  succeeded  to  the  parental 
or  patriarchal  authority,  and  this  being  sacerdotal  as  well 
as  secular,  embraced  every  power  which  their  necessities 
demanded.* 

The  process  by  which  this  species  of  government  would 
mature  into  political  power,  may  easily  be  conceived,  and 
needs  no  explanation.  A  knowledge  of  the  nature  and  be- 
nefits of  civil  union  being  once  known  to  the  first  progeni- 
tors of  our  race,  history  or  tradition  would  seldom,  if  ever, 
suffer  it  to  be  entirely  lost,  and  thus  it  is  that  all  the  na- 
tions of  the  earth  are  indebted  for  their  exemplar  of  civil 
society,  to  those  primitive  political  associations  which 
spring  from  the  patriarchal  dynasties  of  which  we  have 
spoken.  The  student,  if  desirous  to  investigate  the  nature 
and  extent  of  patriarchal  authority,  may  consult  the  au- 
thorities in  the  margin.! 

We  have  now  concluded  our  remarks  on  the  various  the- 
ories advanced  to  account  for  the  origin  of  society  and  go- 
vernment. We  have  dwelt  longer  on  the  subject  than  was 
perhaps  necessary,  as  many  of  them  are  the  fancies  of  spe- 
culation, but  still,  when  taken  together,  give  us  a  tolerably 
correct  view  of  the  actual  origin  and  progress  of  nations. 

*  Gen   xiii.  6.  12;   xiv.  13.  18.  24;  xxxi.  44.  54;  xlix.  3.  4.  ct  passim. 

t  Jennings1  Jewish  Antiquities,  1  vol.  100.  Harrington's  Works,  241.  331. 
332.  Sydney  on  Government,  chap.  1,  sec.  7.  Pufiendorf,  book  1,  ch.  3, 
sec.  6.     Home's  Introduction,  vol.  3,  part  2,  chap.  1. 


174  OF    PRIMARY    SOCIETY,  [Lect.  IT. 

They  also  show  us  how  unphilosophical  it  is  to  impute  the 
origin  of  these  institutions  to  the  operation  of  any  single 
principle,  and  that  probably  nearly  all  of  them  concurred 
in  their  production. 

Let  us  now  briefly  advert  to  some  of  the  benefits  con- 
ferred on  man  by  submission  to  positive  laws,  and  the  va- 
rious institutions  of  civil  society. 

1.  We  have  had  occasion  to  speak  of  the  uncertainty  of 
the  law  of  nature,  or  rather  the  difficulty  of  knowing  its 
prescriptions  under  particular  circumstances;  for  though 
this  law  be  not  dumb,  it  is  sometimes  not  easy  to  under- 
stand its  injunctions.  Be  men's  inclination  to  do  justly 
what  it  may,  they  often  want  time  and  talent  to  come  to 
correct  conclusions  regarding  what  is  just;  nay,  in  many 
cases,  there  wants  rather  a  consent  to  take  one  of  two  paths 
which  are  indifferently  right,  than  judgment  to  decide 
which  is  best.  Innumerable  cases  occur  in  the  most  sim- 
ple relations  of  life,  in  which,  for  example,  the  hunter,  the 
aitificcr,  the  labourer  cannot  stay  to  form  a  deliberate  judg- 
ment: in  such  cases,  it  is  in  the  law  of  nature,  as  in  the 
municipal  law,  less  important  what  the  law  is,  than  that  it 
should  be  fixed.  Now  civil  society  is  intended  to  remedy 
this  difficulty:  men  submit  themselves  to  some  common 
head,  or  select  the  most  able  minds  from  the  mass,  to  con- 
sider what  rules  will  be  best  promotive  of  general  good, 
under  the  particular  circumstances  in  which  the  community 
may  find  itself;  and  hence  originates  the  legislative  pow- 
er of  government. 

2.  A  not  less  essential  circumstance  than  the  directing 
of  men's  minds  by  the  common  understanding,  is  the  sub- 
jugation of  their  wills  by  the  common  force.  As  the  for- 
mer is  creative  of  the  legislative  power  of  a  community, 
so  is  the  latter  of  the  executive.  Though  the  tenden- 
cy may  be  to  good  in  the  main,  there  are,  we  know, 
sufficient  restless  spirits  to  be  found,  who  disturb  the  con- 


Lfect.  IV.]  AND    CIVIL    GOVERNMENT.  175 

cord  of  the  many,  and  therefore  require  the  union  of  the 
majority  for  their  speedy  and  certain  correction.  Nor  is 
it  necessary,  as  has  been  shown,  that  we  should  resort  to  a 
prevalent  evil  principle  in  man,  since,  as  Puffendorf  well 
remarks,  'if  out  of  the  whole  multitude  of  mankind,  each 
man  had  but  a  single  foe,  this  were  enough  to  fill  the  whole 
world  with  hatred  and  dissention.'  A  competent  force, 
therefore,  being  provided  for  the  execution  of  the  laws  of 
policed  societies,  renders  legislation  efficient,  and  compels 
the  observance  of  laws,  where  virtue  and  good  morals  arc 
not  sufficient  to  maintain  their  supremacy. 

3.  Although  we  have  diffeted  from  those  jurists  who 
maintain  that  man  resorts  to  civil  society  immediately  from 
the  social  principle,  yet  it  is  evident  that  mediately  this 
principle  is  an  essential,  and  perhaps  a  primary  cause  of 
simple  association,  and  may,  with  others,  have  tended 
largely  to  the  production  of  laws  and  regular  governments. 
Men,  doubtless,  might  indulge  their  love  of  society  in  a 
good  degree,  might  trade  and  contract  together,  and  enter 
into  many  other  relations,  in  mere  primary  society;  but 
as  the  social  affections  expand,  as  the  ties  of  relationship 
increase,  as  numbers  multiply,  there  arises  more  and  more 
necessity  for  some  clear  arrangement  of  the  rules  of  order, 
a  fixed  source  for  their  emanation,  and  some  strong  and 
prevailing  power  to  control  the  heedless  and  the  base,  and 
finally,  to  see  that  all  the  rules  prescribed  shall  be  obeyed. 
It  is  thus  that  the  social  principle  may  become  strongly 
though  mediately  operative  in  the  production  of  political 
societies  or  nations. 

4.  The  foregoing  principles  enable  us  to  explain  why  all- 
mankind  are  not  one  civil  society;  but  are  found  parcelled 
out  into  numerous  political  states,  larger  or  smaller  ac- 
cording to  choice  or  circumstances.  As  all  these  associa- 
tions have  principally  in  view  the  constitution  of  a  com- 
mon   understanding   for    legislative   purposes,   the   society 


176  OF    PRIMARY    SOCIETY,  [Lect.  it 

must  not  be  so  large  as  to  render  this  difficult,  either  as  to 
the  collection  of  the  common  will,  or  its  communication 
to  the  common  force  which  is  to  have  in  charge  the  exe- 
cution of  that  will.  We  need  not  advert  to  the  various  ac- 
cidents which  have,  in  fact,  produced  civil  societies,  as  we 
gee  them  exist  every  day.  These  topicks  will  be  more 
properly  remarked  on,  when  we  cornc  to  speak  of  the  va- 
rious forms  of  civil  government,  and  the  principles  on 
Which  they  are  based. 

5.  It  has  not  been  our  design  to  enumerate  with  exact- 
ness, or  to  discuss  with  precision,  the  numerous  advanta- 
ges and  motives  of  the  adoption  of  regular  governments; 
the  perception  of  which  a  priori  by  mankind,  may  be 
supposed  to  have  influenced  the  transition  from  a  state  of 
nature  to  that  of  primary  society,  and  then  to  that  of  po- 
litical. These  inquiiies  lead  to  useful  results,  though,  in 
point  of  fact,  such  progressive  changes  may  never  have  taken 
place.  In  conclusion,  we  may  mention  another  great  ad- 
vantage derived  from  civil  societ}',  which  is.  that  men  ob- 
tain thereby  the  full  benefit  of  exclusively  exercising  those 
peculiar  talents  with  which  nature  has  endowed  them.  In 
primary  society,  every  father  of  a  family  must  he  supposed 
to  act,  in  some  degree,  the  part  of  a  legislator;  he  must 
establish  some  rules  of  duty,  attach  some  penalties  to  the 
neglect  of  them,  and  therefore  must  either  learn  to  think 
on  matters  infinitely  various,  and  often  much  beyond  his 
comprehension,  or  must  be  content  to  observe  and  borrow 
such  as  he  finds  most  beneficial  in  the  families  of  his  neigh- 
bours. Civil  society,  on  the  other  hand,  leaves  every  one 
at  liberty  to  mind  his  particular  or  favourite  occupation; 
while  on  exalted  genius  and  knowledge  is  devolved  the 
task  of  planning  the  government  and  laws,  and,  in  turn,  this 
genius  and  learning  are  discharged  from  all  humbler  callings. 
Enough,  however,  has  been  stated  to  show  the  powerful 
obligation   imposed  on   man   to  cultivate   political  society. 


Lect.  IV.]  AND    CIVIL    GOVERNMENT.  177 

It  is  the  most  efficient  guard  of  his  felicity,  and  the 
surest  promoter  of  all  the  ends  of  his  heing.  Under  this 
view,  and  to  this  extent  only,  is  it  that  government  is  re- 
ferrible  to  a  divine  command,  and  thus  may  we,  also,  un- 
derstand Aristotle,  when  he  denominates  man  a  Political 
Animal;  for  he,  doubtless,  is  a  political  being,  whose  hap- 
piness cannot  be  secured,  whose  acquisitions  cannot  be 
guarded,  whose  faculties  cannot  be  expanded,  and  whose 
nature  cannot  be  exhibited  in  its  vast  power  and  variety, 
without  this  species  of  association. 
(3.)  History,  and  a       In    bringing   this  lecture  to  a  close,  I 

knowledge  of  man's  have  to  remark  that  the  science  of  go- 
moral   and    physical  ,         .....  , 
nature,  are  more  to  vertiment  and  politicks  is  much  more  in- 

be  relied  on  than  po-  debtee!  to  authentic  history,  and  an  accu- 

litical  systems.  ,  •    ,  ...      ,,  ,  , 

J  rate    acquaintance    with    the    moral    and 

physical  constitution  of  our  species,  than  to  the  theories 
and  speculations  of  philosophers.  It  cannot  be  doubted, 
however,  that  the  learning,  zeal  and  ingenuity  displayed 
in  these  investigations  into  man's  natural  state,  and  his  pro- 
gress to  political  refinement,  though  based  on  much  specu- 
lation, have  contributed  in  no  small  degree  to  illustrate 
the  science  of  natural  jurisprudence,  and  to  fashion  our 
minds  to  correct  views  in  political  philosophy.  But  in 
order  to  avoid  error,  we  must  study  human  nature  in  all  its 
varieties,  in  all  ages,  and  in  all  countries,  and  be  always 
careful  to  separate  history  from  fable,  the  latter  being  by 
far  the  greater  portion  of  a  great  deal  that  is  called  history. 
Political  wisdom,  also,  will  be  found  to  be  the  offspring  of 
experience,  not  of  theory;  and  history  is  the  record  of  that 
experience,  and  its  results.  From  this  source  must  we  de- 
rive those  lights  which  experiments  shed  upon  the  specu- 
lations of  men;  and  to  these  only  will  students  look,  as 
the  lamp  and  clue  which  are  to  direct  them  to  the  adytum 

of  truth. 

Hinc  orantibus 

Responsa  dantur  certa. 
23 


LECTURE  V. 


OF    THE    RIGHT    OF    CIVIL    GOVERNMENT. 

Introduction.  The    motives  which   possibly  induced 

men  to  establish  society  and  civil  government,  having  been 
sufficiently  considered  in  the. preceding  lecture,  we  are  now 
to  discuss  the  Right  of  civil  government,  and  to  ascertain 
the  limits  of  that  tight,  by  reference  to  the  objects  which 
government  is  designed  to  attain. 

Civil  government,  whether  viewed  as  an  improved  mo- 
dification of  our  primary  or  simple  association,  or  as  a  ne- 
cessarv  evil  springing  from  the  multiplication  of  our  num- 
bers, and  of  our  mutual  transactions,  must,  in  either  case, 
be  subject  to  the  limits  prescribed  for  the  accomplishment 
of  its  purposes:  for  if  we  look  on  political  union  as  an 
improvement,  we  must  measure  and  conduct  it  according 
to  the  objects  contemplated  in  that  improvement;  and  if 
we  regard  it  as  an  evil,  we  must  then  view  it  as  a  sacrifice 
of  some  good,  and  some  liberty,  for  the  security  of  other 
goods,  and  oi  our  remaining  liberty,  and  it  were  obvious- 
ly i'.))easonable  to  carry  the  sacrifice  beyond  the  bounds 
dictated  by  the  clear  necessity  of  the  occasion.  We  are 
therefore  to  consider  civil  government  in  no  other  light 
than  as  an  association  of  men  for  the  production  and  preser- 
vation of  good  order;  a  good  order  which  is  to  be  purchased 
by  yielding  up  in  some  degree  ihe  liberty  of  self-control,  but 
which  yielas,  or  should  yield,  in  return,  the  advantages  of 


Lect.  V.]  OF    THE    RIGHT    OF    CIVIL    GOVERNMENT.  179 

secured  liberty  and  property,  and  of  the  tranquil  discharge  of 
all  acts  and  purposes  essential  or  convenient  to  human  happi- 
ness. Viewed  in  this  light,  civil  government  is  an  insti- 
tution established  for  the  happiness  and  advancement  of  the 
governed,  and  not,  in  any  degree,  for  the  advantage  and 
aggrandizement  of  those  who  govern. 
(i.)  The   right  of       Few   questions    have    been    discussed 

civil    government    is    „, -.i  ,1 

.t,     °  _.  .  .    ,  with    more   warmth,  or  given   rise  to    a 

either     Original      or  » 

Subsequent.  greater  display  of  learning,  than  that  of 

which  the  object,  is  to  ascertain  the  true  relation  between  go- 
vernors and  governed.  The  right  of  civil  government  has 
been  at  all  times  a  topick  full  of  interest,  no  less  to  the 
admirers  of  despotic!?  power,  than  to  the  zealous  advocates 
of  humanity.  If  the  sycophants  of  royalty  have,  in  all 
ages  and  countries,  been  watchful  of  the  interests  of  their 
masters,  the  people  have  not  been  uniformly  submissive  to 
their  guidance,  but  have  chosen  sometimes  to  understand 
and  to  vindicate  their  own  rights,  or  to  listen  to,  and  be  di- 
rected by  the  superior  intelligence  of  a  few  in  whom  they 
could   justly  confide. 

By  the  right  of  civil  government  we  mean  the  source  or 
tenure  of  civil  or  political  power;  or,  in  other  words,  the 
right  by,  or  in  virtue  of  which,  those  exercising  govern- 
mental powers  do  rightly  claim  to  exercise  them.  The 
government  de  facto  is  to  be  distinguished  from  the  go- 
vernment de  jure,  though  the  former  may  be  wisely  and 
virtuously  administered,  and  the  latter  weakly  and  vicious- 
ly. An  inquiry  into  the  origin  and  motives  of  civil  go- 
vernment, (which  was  the  subject  of  the  preceding  lecture) 
terminates  with  an  investigation  of  the  facts,  actual  or  pre- 
sumed, which  induce  men  to  submit  to  it;  but  the  right  of 
civil  government  demands  a  further  inquiry;  and  we  are 
then  to  examine  into  the  tenure,  and  legitimate  source  of 
the   power  claimed    by    those   exercising    political    rule. 


130  °P  THE   RIGHT   of  [Lect.  V. 

These  topicks  are  all  closely  allied;  and  hence  the  suhject 
of  the  present  lecture  is  the  natural  sequel  of  the  prece- 
ding. 

The  right  of  civil  government  may  be  considered,  first, 
as  original,  and  secondly,  as  subsequent.  By  the  origi- 
nal right  of  civil  government  we  mean  that  which  arose 
on  the  establishment  of  the  particular  government,  and 
which  flowed  from  the  original  source  of  power,  whate- 
ver that  may  have  been,  to  those  first  receiving  it,  and 
whatever  may  have  been  the  form  of  government  then 
adopted.  By  the  subsequent  right  of  civil  government  is 
understood  that  which  subsists  during  the  various  changes 
that  take  place  in  the  form  and  circumstances  of  the  go- 
vernment, in  the  persons  exercising  the  political  rule,  and 
in  the  members  of  the  community  over  which  it  is  exer- 
cised. Thus,  for  example,  if  a  man  be  selected  as  the 
chief  of  an  infant  community,  in  him  resides  the  original 
right  of  civil  government.  If  his  son  succeeds  him  in 
this  power,  or  if  he  himself  should  happen  to  survive  all 
those  from  whose  choice  his  right  originally  flowed,  the 
right,  if  any,  by  which  he  continues  to  rule,  or  that  of  his 
successor,  would  be  the  subsequent  right  of  civil  govern- 
ment. 

To  ascertain  the  foundation  or  source  of  this"  right, 
original  and  subsequent:  that  is,  to  determine  on  what 
principles,  and  by  whom,  and  for  whom  it  was  first  esta- 
blished; how  the  posterity  of  the  original  framers  of  this 
government  are  bound  to  obedience;  and  how  the  recipro- 
cal obligations  of  those  who  rule,  and  are  ruled,  are  con- 
tinued throughout  the  various  changes  to  which  we  have 
alluded;  have,  simple  as  they  are,  been  the  topicks  of  much 
discussion,  and  will  form  the  only  matters  of  inquiry  in 
the  present  lecture. 


Lect.  V.]  CIVIL    GOVERNMENT.  181 

(20  Of  the  original  Some  writers  have  ascribed  the   insti- 

risht,    supposed    to  tution,  not  only  of  primary  and   civil  so- 

arise,   1st,   fr-nn    Pi-  •    ,        i     ,.     r     ^^         r.-i 

yine  Command;  2d,  cietv'  but  of  a11   po'^cal  government,  to 

from  the  Consent  of  Divine   Command.      They    suppose   that 

the  Governed.  •    .  i         ••.•     ,       ,     •       .         ,    . 

society  and   political  rule  in  the  abstract, 

are  of  divine  ordinance;  that  the  right  of  all  civil  go- 
vernment, whether  original  or  subsequent,  must  be  re- 
ferred to  this  high  source;  and  that  if  even  the  consent  of 
the  governed  be  impliedly,  or  ever  so  expressly  manifest- 
ed, this  is  merely  in  accordance  with  a  previously  existing 
right,  derived  from  the  fountain  of  all  power.  In  the  pre- 
ceding lecture,  when  speaking  of  the  origin  of  society,  we 
stated  our  reasons  for  dissenting  from  the  theory  which  as- 
cribed the  institution  of  society  to  divine  command.  So, 
we  think,  sufficient  motives  may  be  easily  pointed  out  as 
the  source  of  government  in  fact,  and  to  evince  its  rights 
and  obligations,  without  recourse  to  any  injunction  from 
heaven.  We  conceive  that  political  communities  are  to  be 
upheld  or  rejected  on  precisely  the  same  grounds  by  which 
innumerable  other  dictates  of  the  law  of  nature  are  demon- 
strated, viz.  by  (heir  conduciveness  to  the  good  or  preju- 
dice of  man.  This  is  the  great  principle  to  which  all 
others  must  be  reduced,  and  to  this,  as  we  shall  endeavour 
to  show,  all  other  principles  to  which  the  right  of  govern- 
ment has  been  referred,  such  as  possession,  inheritance, 
prescription  &c.  &c.  as  far  as  they  are  in  any  degree  ope- 
rative, are  reducible  at  last. 

We  have  reason  to  thank  the  diffused  good  sense  of  the 
times,  that  the  derivation  of  all  government  from  the  divine 
command  is  no  longer  pervertible  to  the  wicked  usurpa- 
tions on  the  rights  and  peace  of  mankind,  to  which  it  has 
in  worse  days  been  abused,  by  ignorance,  servility  and 
pride.  For  the  position  that  government  in  the  abstract 
sprang  from  divine  command,  very  naturally  gave  birth  to 
the  notion  that  'God  conferred  on  certain  individuals,  fa- 


:f 


X82  OF    THE    RIGHT    OF  [Lect.  V. 

milies  and  successions  the  exclusive  right  of  political  au- 
thority over  the  rest  of  their  species,  and  imposed  on 
others  a  correspondent  obligation  to  obey  them.'  To 
such  absurdities  does  the  wrong  use  of  phrases  often  be- 
tray us.  To  drop  for  the  moment  all  consideration  of  the 
idleness  of  such  a  doctrine  as  respects  the  law  of  nature, 
and  the  genera!  utility  which  that  law  is  always  supposed 
to  regard,  we  would  ask  what  else  than  the  arrogance  of 
despotism  on  the  one  hand,  and  the  abjectness  of  slavery 
on  the  other,  could  have  engendered  the  notion  that  heaven 
communicated  a  right  of  government  even  to  the  virtuous 
and  the  wise,  mucW  less  to  the  weak,  the  wicked,  the  ig- 
norant, the  imprudent,  and  the  tyrannical  indiscriminately? 
Scarcely  any  supposition  can  be  more  disparaging  to  that 
Providence  which  directs  the  world,  than  to  erect  into  his 
particular  favourites,  and  to  invest  with  the  prerogative 
which  approaches  nearest  to  his  own,  the  spoiled  inheritors 
of  hereditary  rule;  a  race  which  has  almost  always  been 
most  ignorant  and  wicked  in  proportion  as  this  despicable 
opinion  has  pervaded  the  age.  But  when  we  come  to  re- 
member, (what  no  sound  mind  could  well  forget  or  over- 
look) that  the  good  of  mankind  is  the  only  object  which 
the  moral  governor  of  the  world  can  be  held  to  entertain; 
that  general  felicity  is  the  end  and  final  cause  of  all  his  cre- 
ation; and  that  utility,  which  is  nothing  more  than  general 
and  durable  good,  is  constantly  proposed  to  us  in  all  his 
laws,  whether  collected  from  the  physical  or  moral  crea- 
tion, it  seems  highly  absurd  to  imagine  any  ether  founda- 
tion of  the  mutual  rights  and  obligations  of  civil  govern- 
ment. It  is  true  that  the  jure  divino  government  of 
kings  has  not  been  the  notion  merely  of  barbarous  ages 
and  people,  but  has  been  a  political  dogma  almost  of  our 
own  day,  and  been  sustained  by  a  nation  eminent  in  wis- 
dom and  virtue;  forming  one  among  numerous  examples 
of  the  slow  advances  which  have  been  made   in   political 


Lect.  V.]  CIVIL    GOVERNMENT.  183 

science  in  all  countries,  and  in  all  ages  of  the  world.  It 
would  indeed  seem  infinitely  strange,  if  equal  and  greater 
absurdities  were  not  discoverable  in  every  stage  of  human 
opinion,  that  princes  should  have  been  deemed  the  peculiar 
favourites  of  heaven,  or,  to  use  the  language  of  Dr  Paley, 
'to  be  ordained  of  God  by  virtue  of  any  other  than  that 
general  decree  by  which  he  assents,  and  adds  the  sanction 
of  his  will,  to  every  law  of  society  promotive  of  his  pur- 
pose, viz.  the  communication  of  human  happiness:'  A 
principle,  we  would  add,  whereby  the  meanest  minister 
or  ordinance  of  law  is  not  less  of  divine  right,  than  the 
most  important  and  equitable  ordinances  of  the  most  pow- 
erful and  just  princes. 

It  is  a  singular  fact  in  the  history  of  man,  that  this  belief 
of  a  divine  right  in  governors  has  been,  in  all  ages,  and  in 
most  nations,  nearly  as  prevalent  as  the  other,  and  only 
sound  opinion,  which  ascribes  all  political  rule,  as  to  both 
its  origin  and  form,  to  the  consent  of  the  governed.  This 
belief  in  the  divine  right  of  civil  government  originated, 
we  apprehend,  from  two  causes,  viz.  first,  from  not  proper- 
ly distinguishing  between  the  moral  necessity  that  man  is 
under  to  submit  to  government  of  some  kind,  which  is  pro- 
perly referred  to  the  will  of  God;  and  that  right  claimed 
by  some  kings,  of  governing  in  their  own  way,  exempt  from 
all  control  or  limitation  from  those  over  whom  they  exer- 
cise such  power.  It  is  extremely  plain,  that  whilst  sub- 
jection to  rule  of  some  kind  is  essential  to  the  happiness 
and  well  being  of  man,  and  is  consequentl)-,  in  one  sense,  of 
divine  appointment,  this  is  altogether  different  from  the  di- 
vine right  which  ha>  been  asserted  by  certain  monarchs  and 
dynasties.  Secondly,  this  notion  of  a  jure  divino  political 
power  arose  from  the  ambition  of  tyrannical  monarchs, 
whose  policy  it  was  to  inculcate  a  belief  which  not  only  sanc- 
tioned their  enormities,  hut  silenced  all  opposition,  since  it 
would  be  regarded  as  sacrilegious  to  raise  the  arm  of  h«- 


1S4  OF    THE    RIGHT    OF  [Lect.  V. 

man  power  against  the  vicegerents  of  deity.  Many  kings 
and  princes  have  been  fond  to  trace  their  origin  from  some 
god.  It  is  said  that  Numa  received  his  laws  from  a  deity. 
The  founders  of  the  imperial  city  were  traced  to  the  same 
illustrious  origin.  Octavius  Ccesar's  usurpation  could  be 
legitimated  only  by  proving  the  descent  of  the  Julian  fami- 
ly from  a  goddess;  and  Alexander  the  Great,  not  content 
with^  his  descent  from  those  celebrated  heroes,  Hercules 
and  Achilles,  claimed  to  be  the  immediate  son  of  Jupiter 
Ammon.  So,  also,  the  royal  family  of  Abyssinia  claim 
Solomon  for  their  great  progenitor,  and  they  encourage  the 
opinion  among  their  subjects,  that  they  inherit  from  that 
wisest  of  all  men,  a  species  of  divine  right  of  government. 
We  know,  likewise,  that  the  Peruvians,  on  a  similar  prin- 
ciple, believe  their  Incas  to  be  the  offspring  of  the  sun; 
and  the  dynasties  of  Aid  and  Omar  rest  their  right  of  politi- 
cal rule  on  their  descent  from  Mohammed,  the  prophet  of 

God. 

In  more  modern  times,  and  among  more  civilized  na- 
tions, this  doctrine  of  the  divine  right  of  political  rule 
has  generally  been  considered  too  pregnant  with  evil,  and, 
indeed,  too  absurd  to  be  endured.  The  opinion  which  is 
now  usually  advanced  is,  that  although  some  government 
is  ordained  of  God,  yet  the  particular  form  of  government, 
and  the  series  of  laws,  are  to  be  left  wholly  to  the  wisdom 
and  discretion  of  men,  that  is,  of  the  governed.  Hence, 
in  the  language  of  Milton,  'the  institution  of  magistracy 
is  jure  divino,  and  the  end  of  it  is,  that  mankind  might 
live  under  certain  laws,  and  be  governed  by  them:  but 
what  particular  form  of  government  each  nation  should  live 
under,  and  what  persons  should  be  entrusted  with  the  ma- 
gistracy, was,  without  doubt,  left  to  the  choice  of  each  na- 
tion.'*   To  the  same  effect  are  the  opinions  of  Forteseue,t 

*  Milton's  Defence  of  the  People  of  England,  64. 
■j  Fortes,  de  Laud.  Leg.  Ang.  ciii,  xiii. 


Lect.  V.]  CIVIL    GOVERNMENT.  185 

Parsons,*  Dolman, t  Bellarmine,J  Sydney, ||  Plowden,§  and 
numerous  others  to  whose  works  we  might  refer,  were 
further  authority  necessary  on  such  a  point.  In  conclu- 
sion of  this  question  we  would  only  remark,  that  most  of 
the  advocates  of  the  divine  right  of  civil  government  have 
not  distinguished  sufficiently  between  the  obligation  to 
submit  to  political  rule  in  general,  and  the  duty  of  yield- 
ing to  the  government  of  particular  individuals,  and  such 
forms  of  polity  as  they  prescribe.  In  support  of  their 
opinion,  they  have  also  uniformly  applied  the  arguments 
applicable  only  to  the  former,  to  sustain  them  in  the  latter 
position;  and  have  availed  themselves  of  a  confusion  thus 
inevitably  produced,  to  uphold  an  otherwise  naked  absur- 
dity; well  knowing  that  as  the  author  of  nature  required 
all  men  to  submit  to  government  of  some  kind,  the  igno- 
rant and  nndiscriminating  could  be  easily  made  to  adopt 
the  opinion,  that  particular  forms  of  government,  adminis- 
tered by  particular  families,  (more  especially  if  possessed 
of  such  power  for  many  generations)  were  equally  obliga- 
tory. But  we  now  dismiss  this  question,  (at  one  time  of 
great  moment,)  to  the  oblivion  to  which  the  good  sense  of 
the  day,  or  the  diversion  of  its  prejudices  into  some  other 
channel,  has  consigned  it. 

We  now  proceed  to  the  discussion  of  the  second  divi- 
sion of  this  inquiry,  viz.  that  which  refers  the  original 
right  of  civil  government  solely  to  the  consent  of  the  go- 
verned. 

Though  there  has  been  much  mistake,  either  ignorant 
or  wilful,  on  this  long  debated  question,  we  cannot  but 
think  that  the  antagonists  have  approached  much  nearer  to 
each  other's  opinions  than  they  have  been  aware  of  them- 

*  Parsons'  Answer  to  Sir  Edw.  Coke,  cii. 
t  Dolman's  Conference  on  the  Succession  of  the  Crown,  8,  9. 
|  Bellarmine  de  Laicis,  Lib.  3,  c.  6. 
||  Sydney  on  Government,  15,  55. 
S  Plowden's  Jura  Anglo.  61,  69. 
24 


180  OF    THE    RIGHT    OF  [Lect.  V. 

selves.  The  question  between  such  as  refer  this  right  to 
divine  command,  and  those  who  found  it  on  consent,  ap- 
pears resolvable  into  this  shape,  viz.  whether  this  contract, 
(for  a  contract  it  must  be  to  every  rational  appreher-sion,) 
may  rest  on  the  same  basis  as  other  contracts,  viz.  the  will 
of  the  contracting  parties;  or  whether  it  alone  of  all  other 
compacts,  requires  a  divine  interposition  to  establish  and 
fortify  it.  If  we  have  not  assumed  the  point  in  calling 
government  a  compact,  there  seems  to  be  no  reason  whate- 
ver for  referring  its  obligation,  in  any  degree,  to  any  other 
principle  than  that  which  regulates  all  other  agreements, 
that  is,  the  mere  will  of  the  contracting  parties.  If  it  be 
a  contract,  it  lies  on  those  who  assert  that  it  differs  from 
others,  to  prove  how  and  why  it  differs.  No  reason,  wor- 
thy of  that  name,  has  ever  been  assigned  for  referring 
political  rule  to  any  other  origin  than  the  consent,  either 
express  or  implied,  of  the  governed.  It  has  rested  at 
all  times  on  mere  assertion,  forced  analogies,  and  con- 
fused reasonings  deduced  from  expediency,  or  the  mere 
moral  necessity  of  yielding  to  government  of  some  kind. 
But  if  a  particular  government  be  not  wholly  independent 
of  the  consent  of  the  governed;  if  it  reposes,  in  any  degree, 
on  their  consent,  they  may  well  ask  for  evidence  of  its 
having  any  other  basis  than  that  of  consent.  It  may  be 
here  remarked,  that  not  every  tiling  to  which  a  man  vo- 
luntarily consents,  is  therefore  just  and  lawful,  according 
to  the  law  of  nature.  It  is  undoubtedly  obligatory  on  him 
who  consents  or  contracts,  so  far  as  it  is  uncontradicted  by 
the  precepts  of  that  law;  but  still  its  character  cannot  be 
conceived  to  be  in  the  least  changed  by  the  circumstance 
of  consent;  so  that  justice  and  injustice,  right  and  wrong, 
are  abstractly  altogether  independent  of  man's  consent. 
Consent,  indeed,  may  tend  to  evince  more  clearly  the  pro- 
bable character  of  an  action;  but  it  can  make  it  neither 
more  right,  nor  more  wrong.     How  then,  it  may  be  asked. 


Lect.  V.]  CIVIL    GOVERNMENT.  187 

can  the  right  of  civil  government  be  referrible  to  consent, 
when  we  deny  to  consent  the  power  to  confer  on  the  ac- 
tion a  character,  so  as  to  make  it  right  or  wrong,  and  there- 
fore obligatory  or  otherwise  on  him  who  consents?     The 
question  is  a  natural  one,  and   the  point  demands  some  ex- 
planation.     We   have   hitherto  maintained   that  utility  or 
expediency  is  the   sole  basis  and    measure  of  the    natural 
law.      From    this  we  educe   general  rules,  and    to  this  we 
refer  our  conduct  when  we  desire  to  ascertain  its  justness. 
But  as  God  has  made  no  man  the  judge  of  another,  and  as 
all    individuals  are  essentially  entitled  to  the  exercise  of 
their  own   judgments,  whatever  the  difference  of  natural 
endowments  may  be,  there  can  be  no  other  depository  of 
the  precepts  of  the  natural   law,  than  each   man's   bosom; 
no  other  interpreter   of  its  language,  than  his   own  judg- 
ment    Hence  men  are  naturally  quite  independent  of  each 
other,  and  while  they  must  all  recognize  the  general  con- 
venience as  the  measure  of  their  actions,  each  must  judge, 
in  the  last  resort,  of  the  conformity  of  every  action,  or  of 
anv  course   of  conduct,   with    that   measure   or  standard. 
This   being  the  case,  we  find  that  man's  independence  of 
judgment  becomes  itself  speedily  limited  by  that  very  uti- 
lity or   expediency,  and   that  we   must  submit  to   certain 
rules  which  the  common  sense  of  mankind  has  in  all  times 
and   circumstances  found   essential  to   the  just  order  and 
peace  of  human  life;  and   the  necessity  of  keeping  one's 
promise  or  contract,  will  be  found  to  be  a  primary  princi- 
ple, very  soon  recognized,  and  fully  established. 

Now,  in  giving  a  promise,  or  entering  into  a  contract, 
we  express  our  consent,  and  the  expression  of  that  consent 
is  the  date  from  which  the  right  of  another,  and  our  own 
obligation  commence.  Before  that  consent  was  given,  there 
existed  only  such  a  right,  and  such  an  obligation,  as  general 
expediency  created,  and  we  are  to  look  to  the  consent 
as   merely    defining    and    ascertaining  a   right  and    obli- 


J38  OF   THE    RIGHT    OF  [Lect.  V 

gation  that  repose  on  the  rule  of  expediency,  which  binds 
us  to  keep  our  promise.  Hence  we  see  that  the  general 
happiness  is  the  origin  and  measure  of  the  right;  individual 
independence  is  essential  to  the  preservation  of  that  happi- 
ness; that  independence  confers  on  all  the  power  of  sus- 
pending assent;  but.  that,  once  given,  defines  the  right  which 
before  was  indefinite  and  unascertained.  Thus,  for  exam- 
ple, a  man  already  convinced  of  the  justice  of  a  required 
action,  is  under  an  obligation  to  God  to  perform  it,  and 
under  a  general  obligation  to  man  likewise;  but  as  no  one 
can  undertake  to  decide  for  him,  without  violating  a  first 
principle  of  nature,  one  thing  is  wanting  to  confirm,  or 
rather  to  ascertain  the  right,  and  that  is  supplied  by  the 
individual's  consent.  While  it  is  therefore  very  true  that 
expediency  is  the  remote  basis  of  the  right  of  civil  govern- 
ment, it  is  equally  certain  that  the  consent  of  the  parties  is 
the  immediate  fountain  of  the  right;  in  the  same  way  that 
natural  law  dictates  marriage,  and  individual  consent  binds 
the  parties  under  the  immediate  obligation.  So  that  in 
truth,  though  expediency  and  consent  should  go  hand  in 
hand,  yet  we  may  properly  reject  expediency  as  the  imme- 
diate foundation  of  political  rule,  and  contend  that  consent 
is  the  true  basis,  although  consent  per  se,  and  independent- 
ly of  utility,  cannot  confer  the  character  of  right.  Hence, 
we  must  go  a  step  further  before  we  get  entirely  rid  of  the 
objection,  that  consent  does  not  give  the  character  of  right 
to  an  action.  And  here  it  may  be  asked,  whether  the  con- 
sent of  men  to  live  without  the  restraints  of  civil  govern- 
ment, would  make  such  a  state  of  perfect  freedom  right  in 
itself.  There  can  be  no  doubt,  as  we  have  before  remark- 
ed, that  there  exists  an  abstract  fitness  of  things,  indepen- 
dent of  all  human  opinion,  and  which  is  perfectly  suited, 
could  we  but  know  it,  to  promote  the  best  possible  happi- 
ness of  the  race.  But  as  this  fitness  must  be  perceived  by 
human  judgments,  before  it  can  be  adopted  and  adhered  to 


Lect.  V.]  CIVIL    GOVERNMENT.  1S9 

as  a  rule  of  conduct;  and  as  it  subsists  only  in  the  human 
mind,  so  far  at  least  as  it  concerns  man  in  this  world,  and 
is  therefore  to  be  seen  through  its  medium  alone;  it  follows 
that  that  which  men,  or  a  clear  majority  of  mankind,  con- 
sent to  as  expedient,  just  and  fitting,  is  the  only  measure 
of  that  expediency,  justice  and  fitness.  These  propositions 
are  equally  true  whether  we  admit  or  deny  a  moral  sense. 
Hence,  nothing  can  be  declared  to  be  true,  but  what  the 
mass  of  mankind,  with  the  means  of  judging,  and  in  the 
exercise  of  their  sober  senses,  consent  to  consider  as  such. 
And  it  is  by  this  almost  universal  consent  that  the  expedi- 
ency of  civil  government  is  demonstrated.  As  far  as  our 
argument  is  concerned,  it  is  of  no  consequence  that  the  ad- 
vances to  truth  have  been  very  gradual,  and  that  the  opin- 
ions of  mankind  on  many  important  topicks  have  under- 
gone great  mutations.  Happily,  nature  has  so  ordered  it, 
that  the  principles  essential  to  the  formation  and  conserva- 
tion of  society,  have  been  much  the  same  in  all  ages;  and 
if  our  deductions  from  these  first  and  acknowledged  princi- 
ples are  not  always  just;  if,  from  time  to  time,  we  discover 
that  the  track  of  our  reasoning  deviates  from  good  logick, 
and  that  our  conclusions  are  to  be  rectified  accordingly;  this, 
we  say,  although  it  may  serve  to  show  us  that  abstract  truth, 
and  what  we  think  we  have  demonstrated  to  be  such,  may 
be  different  things  in  themselves,  yet  does  not  relieve  us 
from  the  necessity  of  considering  the  one  as  the  other,  since 
there  is  no  possibility  of  distinguishing  them,  as  guides  of 
human  action.  If  consent,  therefore,  cannot  make  a  thing 
right  or  wrong  in  the  abstract,  it  is  at  least  an  intimation  of 
what  men  consider  such;  and,  as  regards  them  as  moral 
agents,  it  is  truth  and  right,  since  they  can  have  no  ac- 
quaintance, unless  by  some  supernatural  revelation,  with 
any  other  species  of  right. 

Hence  you  perceive  with  what  reason  we  pronounce  that 
the  right  of  civil  government  has  its  origin  in  the  consent 


j gQ  OP    THE    RIGHT    OF  [Led.  V. 

of  the  governed;  and  that  this  is  the  true,  the  rightful,  and 
the  only  source  of  legitimate  political  power. 

When  we  come  to  review  the  various  opinions  as  to  the 
foundation  of  what  is  called  the  subsequent  right  of  civil 
government,  we  shall  find  no  difficulty  in  showing  that 
there  is  no  occasion  for  distinguishing  so  warmly  as  has 
been  done  by  some  writers,  between  expediency  and  con- 
sent; and  that  expediency,  if  not.  followed  by  consent,  can 
never  be  the  source  of  legitimate  political  power,  be  it  ori- 
ginal or  subsequent. 

-  ,.    *  ^  We  have  previously  stated,  that  fay  the 

(3.)  Of  the  Subse-  r 

quent  Right  of  civil  subsequent  right  of  civil  government  is 
government;  and  1st  ^^  thaf  ^y  authority  by  which  a  gO- 
that   this,  as  well  as  m 

the.  original  right;  is  vernment,  once  established,  is  afterwards 
founded  on  consent.  continuec]?  either  by  the  original  function- 
aries, when  those  who  were  first  governed  no  longer  exist; 
or  by  the  heirs  or  other  successors  of  those  functionaries. 
The  title  by  which  these  latter  claim  to  exercise  the  powers 
of  government,  may  be  the  same  as,  or  very  different  from 
that  which  sustained  the  government  originally. 

According  to  the  opinion  we  entertain  as  to  the  true  ori- 
gin of  civil  power,  a  government  may  originally  have  been 
wrongful,  for  it  may  have  been  usurped  by  fraud  or  vio- 
lence, and  yet  it  may  subsequently  become  rightful  by  the 
mere  consent,  express  or  implied,  of  the  governed.  If  the 
original  right  of  political  rule  be  referrible  only  to  consent, 
it  would  seem  to  follow  that  the  subsequent  right  can  be  as- 
cribed to  no  other  cause;*  and  yet  this  has  been  doubted  by 
some  learned  and  able  writers.  Mr  Macaulay  remarks,  that 
'the  division  of  this  right  into  original  and  subsequent,  had 
been  undeserving  of  notice,  had  not  some  political  philoso- 
phers endeavoured  to  maintain,  that  however  the  consent  of 
a  political  community  may  have  been  originally  necessary  to 
constitute  a  rightful  government,  yet  the  right  of  a  govern- 


*  Macau.  Rudi.  140. 


Lect.  V.]  CIVIL   GOVERNMENT.  191 

merit  already  established,  may  exist  independently  of  such 
consent'     The  grounds  on  which  these  writers  would  rest 
the   subsequent  right   of   government,  we  shall   presently 
proceed  to  explain,  and  endeavour  to  confute.     We  would 
premise,  however,  that  in  referring  the  subsequent,  as  well 
as  the  original  right,  in  all  cases  to  the  consent  of  the  go- 
verned, the  principle  of  expediency,  to  which  we  have  so 
often  adverted,  is  in  no  degree  impugned:  for  the  moment 
that  we  acknowledge  the  happiness  of  man  to  be  the  sole 
object  of  civil  rule,  and  of  course  the  only  measure  of  its 
restraints,  we   perceive  the  necessity  of  allowing  men  the 
full  exercise  of  their  discretion  in  the  choice  of  a  govern- 
ment and  rulers.      It  is  not  only  that  there  is  no  umpire  to 
decide  who  are  the  wisest  and  best,  and  to  select  them  as 
their  political   guides;  nor  that  power  begets  injustice  and 
folly  in  the  best  and  wisest  bosoms;  that  men  are  induced, 
at  last,  to  refer  to  the  great  mass  the  selection,  not  only  of 
the  constitution   and   its  administrators,  but  also  the  expe- 
diency of  every  change  in  either,  or  in  both.      The  people 
must  be  regarded,  after  all,  as  the  best  and  the  only  judges 
of  their  true  interests,  and  what  is  promotive  of  them.      If 
they  are  not,  to  whom  can  the  matter  be  referred?     Igno- 
rant, interested,  mistaken,  capricious  and  rash,  no  doubt, 
they  often  are;  yet  in  what  class  of  mankind,  at  once  wise 
and  just,  shall  we  hope  to  find  a  depository  of  their  inter- 
ests?    What  body  of  men  would  be  always  wise  enough  to 
rule;  and,  if  wise,  unassailable  by  the  lust  of  power?     It  is 
very  true,  that  a  body  of  men  in  every  respect  qualified  for 
the  salutary  exercise  of  power,  may  occasionally  be  invest- 
ed with  it;  but  who  are  to  be  their  successors;  who  shall 
correct  their  errors,  should   they  commit  any;  who  shall 
displace  and  punish,  if  any  of  them  should  become  corrupt? 
The  People. 

What  is  now  urged,  therefore,  in  regard  to  the   people, 
obviously  relates  to  them  as  the  permanent  tribunal  and 


192  OP   THE    RIGHT    of  [Lect.  V. 

source  of  all  political  power;  who,  though  they  may  often 
delegate  portions  of  that  power,  must  still  remain  the  ulti- 
mate, as  they  were  the  primary  fountain  of  all  knowledge, 
and  of  all  authority. 

That  consent  of  the  people  is  the  only  mode  of  originat- 
ing and  continuing  the  right  of  government,  is  indeed,  like 
other  plain  propositions,  yet  more  demonstrable  from  the 
absurdity  of  assuming  any  other  principle  as  its  basis,  than 
its  own  intrinsick  reasonableness.  If,  then,  we  examine 
the  pretended  titles  to  subsequent  dominion,  and  apply  the 
reductio  ad  absurdum  vel  impossibile  to  each,  we  think 
it  will  be  found  that  they  are  wholly  to  be  rejected  as  the 
sources  of  a  legitimate  title  to  political  dominion.  These 
supposed  grounds  of  the  subsequent  right  of  civil  govern- 
ment, are  reducible  to  the  following  six,  viz  possession, 
inheritance,  prescription,  ancient  consent  of  the  govern- 
ed, virtues  of  political  rulers,  and  expediency ;  each  of 
which,  it  has  been  urged  by  some  writers,  is  sufficient  to 
legitimate  an  existing  government.  We  propose  to  make 
a  few  remarks  on  each,  and 

1.  Of  Possession.  This  at  once  presents  itself  to  the 
mind  as  a  very  singular  ground  on  which  to  establish  a  right. 
It  is  true,  indeed,  that  the  municipal  laws  of  most  countries 
recognize,  under  some  circumstances,  a  preference  for,  or  a 
prima  facie  right  in  a  possessor;  not  because  he  is  the  pos- 
sessor merely,  but  because  there  is  a  supposition,  in  most 
cases  in  which  possession  is  respected,  that  there  is  no  one 
who  can  exhibit  a  better  title.  Where  we  find  one  in  actual 
possession,  without  any  knowledge  on  our  part  of  the 
means  by  which  he  obtained  it,  or  now  retains  it,  it  is  a 
just  presumption  that  the  possession  and  the  right  are  not 
severed,  but  that  they  harmonize  in  the  same  individual. 
This  inference  is  drawn  from  the  admitted  existence  of  a 
right  somewhere,  and  it  then  becomes  a  rule  of  mere  po- 
licy, that  melior  est  conditio  possidentis;  and  this  obtains 


Lect.  V.]  CIVIL    GOVERNMENT.  193 

until  a  better  title  be  made  out,  when  the  right  takes  place 
of  that  which  was  tolerated  for  a  time,  and  the  rule  of  po- 
licy yields  to  the  superior  claim  of  him  who  is  out  of  pos- 
session.    Possession  then,  even  when  favoured  by  munici- 
pal laws  for  the  quieting  of  controversies,  is  no  more  than 
a  temporary  presumptive  title;  it  is  regarded  as  a  mere  evi- 
dence of  right,  and  not  as  the  source  of  it;  for  whenever 
there  exists  a  clear  right  in  opposition  to  such  possession, 
there,  as  we  have  seen,  the  possessory  claim  is  wholly  un- 
availing, except,   indeed,    in  the  solitary  case  of  what  is 
called  prescription  or  limitation.      In  such  case,  the  positive 
law  has  defined  the  time  in  which  the  right  must  be  pur- 
sued,  which,  if  disregarded  by  the  true  owner,  clothes  the 
mere  possessor   with  a  title  which  overreaches  that  of  the 
person  out  of  possession.     But,  even  in  this  case,  it  would 
be  more  proper  to  regard  it  as  the  conferring  on   the  pos- 
sessor of  anew  right,  than  as  the  confirmation  and  enlarge- 
ment of  an  old  one.     This  title  of  limitation  or  prescrip- 
tion,   moreover,    is   not   a  right  flowing  from   possession 
merely,  but  is  a  positive  estate  or  property  vested  by  the 
law  of  the  land,  which  thus  punishes  the  laches  of  the  for- 
mer owner.     At  the  same  time  that  these  laws  stimulate 
the  indolent  to  a  timely  vindication  of  their  just   rights, 
they  quiet  the  titles  of  those  in  possession,  and  thus  give 
security,  not  only  to  the  mere  possessor,  but  to  those  who 
have  been  at  all  times  rightfully  possessed.     The  foregoing 
views  in  respect  to  property  are,  in  part,  equally  applicable 
to  the  mere  possession  of  sovereign  power.      But  indepen- 
dently of  what  has  been  thus  far  stated,  we  may  now  re- 
mark, first,  that  it  is  always  unsound  to  argue  from  matter 
of  fact  to  matter  of  right;  nor  can  any  just  reasoning  or 
analogy  rest  on  a  comparison  of  mere  positive  institutions 
with  the  general  precepts  of  natural  law,  since  the  former 
may  pursue,  or  vary  from  the  latter,   whilst  the  latter  can- 
not be  made  to  yield  in  its  provisions  to  the  enactments  or 
25 


194  °F    THE    RIGHT    OF  [Lect.  V. 

policy  of  human  laws.     And,  secondly,  we  may  remark, 
that  if  the  right  of  civil  government  did  not  originate  in 
possession,  it  cannot  be  continued  by  possession,  because  it 
may  be  laid  down  as  an  axiom  in  morals,  no  less  than  in 
physicks,  that  a  consecutive  series  of  inefficient  causes  can 
never  produce  a  positive  result.      If  the  original  taking  of 
possession   does  not   confer  a  right,   it  is  not  conceivable 
that  the  continuance  of  that  possession  can  add  any  thing 
to  that  right.     For  if  I  have  supported  myself  in  the  un- 
just occupation  of  my  neighbour's  habitation  for  a  year,  the 
injury  is  so  far  from  being  lessened  by  length  of  time,  that 
it  is  in  fact  only  aggravated.      Such  a  foundation  of  right 
involves  the  paradox,  that  the  longer  an  injury  is  continued, 
the  less  right  has  the  injured  person  to  complain,  and  the 
more  innocent  does  the  wrongdoer  become;  and  yet  such, 
in   reality,  would   be  the  effect  of  placing  the  subsequent 
riorht  of  government  on  mere  possession.      In  conclusion  of 
this  topick  we  will  only  remark,  that  possession,  as  a  source 
of  any  right,  is  still  less  tenable  on  the  principles  of  natu- 
ral law,  than  on  those  of  civil  society.      It  is  said,  indeed, 
that  occupancy  is  the  mode  of  acquiring  property  in  a  state 
of  nature;  yet  even  this,   when  correctly  understood,  will 
be  found  to  rest  solely  on  consent,  express  or  implied,   as 
has  been  shown  in  a  preceding  lecture.      Occupancy  shows 
the  intent  of  men  to  appropriate  specific  things,  and  is  the 
date  of  their  exercise  of  a  right;  but  it  is  evident  enough 
that  occupancy  per  se  is  not   the    foundation   and   actual 
source  of  the  right.      This  may  be  exemplified  by  suppos- 
ing men  to  appropriate  by  occupancy  certain  things,  as,  for 
instance,  the  ocean,  wherein  property  is  wholly  unneces- 
sary for  the  purposes  of  life  and  convenience.      In   such  a 
case  we  know  that  occupancy  would  confer  no  right  whate- 
ver, because  the  consent  of  mankind  could  never  be  pre- 
sumed to  an  appropriation  of  that  sort.      We  have  dwelt 
perhaps  unnecessarily  long  on  this  point,  as,  without  argu- 


Lcct.  V.]  CIVIL    GOVERNMENT.  195 

ment,  there  can  be   no  hesitation  in  rejecting  possession  as 
a  source  of  the  subsequent  right  of  government. 

2.  Of  Inheritance.  What  has  been  stated  of  a  conti- 
nued possession  of  the  powers  of  civil  government,  applies 
in  a  considerable  degree  to  inheritance,  or  hereditary  suc- 
cession. A  man  can  transmit  to  his  heirs  only  what  belongs 
to  himself;  and  he  leaves  his  rights  subject  to  all  the  limi- 
tations and  defects  which  they  had  while  they  appertained 
to  himself.  If  a  false  or  defective  right  was  liable  to  be  de- 
feated in  regard  to  the  possessor,  there  can  be  no  reason  why 
it  shall  gain  strength  in  the  hands  of  his  posterity,  who,  in- 
dependently of  positive  law,  are  always  considered  as  pars 
antecessoris,  and,  as  such,  clothed  with  no  greater  rights 
than  he.  Hence  the  legal  maxim,  founded  on  the  nature  and 
reason  of  things,  'quod  derivativa  potestas  non  potest  esse 
major  primitivd.'  There  is  no  question,  then,  that  in  the 
mere  transmission  there  can  be  no  quality  which  fortifies  a 
weak  claim,  or  justifies  a  bad  one.  Whatever  was  the  infir- 
mity in  the  ancestor's  title,  descends  with  it,  and  is  visited  on 
the  heir.  Even  if  the  title  of  the  possessor  be  a  valid  one, 
its  vesting  in  his  posterity  depends  altogether  on  the  nature 
of  the  right  itself.  Some  rights  are  merely  personal;  oth- 
ers are  alienable  inter  vivos.  Some  are,  by  the  common 
consent,  not  only  allowed  to  be  transmissible  by  a  formal 
declaration,  called  a  will,  but,  in  the  absence  of  such  a  de- 
claration, vest  in  the  heir  of  their  late  possessor.  All  this, 
however,  depends  wholly  on  the  consent  of  the  community, 
either  expressed  or  implied.  The  right  to  make  a  will, 
and  the  succession  ab  intestato,  even  of  things  in  which 
we  have  absolute  property,  and  may  alienate  during  life, 
are  not  necessarily  consequent  on  such  absolute  property, 
and  such  right  of  alienation.  If  this  be  the  ease  in  regard 
to  corporeal  things  of  our  own  acquisition,  and  which,  to 
use  the  language  of  the  Civilians,  are  in  patrimonio,  it  is 
manifestly  absurd  to  treat  sovereign  power,  or  the  right  of 


196  0F   THE   RIGHT   OF  [Lect.  V. 

civil  government,  as  hereditary  property.  A  sound  ad- 
ministration of  government  and  law  demands  experience, 
knowledge  and  integrity;  and  these,  unfortunately,  are 
merely  personal,  and  consequently  are  wholly  incapable  of 
hereditary  transmission.  To  confer  the  right  then,  without 
its  essential  concomitants,  would  be  obviously  unreasonable. 
The  mischiefs  which  would  be  apt  to  result  from  dealing 
with  sovereignty  as  hereditary  property,  may  indeed  be 
countervailed  in  a  degree,  as  they  are  in  many  countries, 
particularly  in  England,  by  the  virtual  government  of 
ministers,  in  some  sense  elective,  or  controllable  by  the 
voice  of  the  people;  or  they  may  be  allowed  by  the  con- 
sent of  the  same  people,  to  avoid  greater  mischiefs  from 
competitions  for  royalty.  But  this  furnishes  no  argument 
in  favour  of  the  hereditary  transmission  of  the  right  to  go- 
vern; for  all  this  is  based  on  consent,  and  does  not  come 
up  to  the  point  of  inquiry,  which  is  merely,  whether  the 
posterity  of  a  sovereign  has  any  right  whatever  in  conse- 
quence and  virtue  of  the  powers  formerly  exercised  by 
such  sovereign.  If  the  progenitor  possessed  it  not,  his 
heir  can  have  no  better  title;  and  if  the  ancestor  were  a 
lawful  ruler,  and  his  heir  competent  and  virtuous,  still  his 
claim  to  the  exercise  of  sovereign  power  would  not  be  su- 
perior to  that  of  others,  unless  it  were  conferred  on  him  by 
the  consent  of  the  governed.  Inheritance  per  se  may, 
therefore,  be  wholly  rejected  as  a  source  of  the  subsequent 
right  of  civil  government. 

3.  Of  Prescription.  The  next  plea  on  which  the 
right  to  supreme  political  power  has  been  supposed  to  rest, 
is  that  of  long  continued  inheritance,  or  succession;  that 
is,  of  custom,  more  frequently  called  prescription.  A  pre- 
scriptive right  to  command,  and  the  correlative  prescrip- 
tive duty  to  obey,  is  a  doctrine  which  sounds  very  strange 
to  republican  ears.  Its  novelty,  however,  should  be  no  ob- 
jection   with    us    to    its    correctness.     If  it   can    pass    the 


Lect.  V.]  CIVIL    GOVERNMENT.  197 

ordeal  of  just  examination,  it  is  entitled  to  be  respected, 
though  it  be  wholly  unknown  to  the  political  jurisprudence 
of  this,  and  all  other  republican  countries.  We  are  to  in- 
quire, then,  whether  sovereign  power  can,  in  its  nature,  be 
liable  to  the  rules  of  prescription.  If  we  advert  to  the 
definition  given  of  prescription  by  Grotius,  Puffendorf, 
Rutherforth  and  others,  we  shall  find  that  no  part  of  it  can 
be  made  to  embrace  sovereign  power,  unless,  perhaps,  it  be 
conceded  that  the  entire  and  absolute  power  was  in  fact  in 
those  who  exercised  political  rule,  without  any  ultimate 
scintilla  juris  in  the  people;  and  even  with  that  admis- 
sion, we  should  find  no  difficulty  in  showing  the  inapplica- 
bleness  of  prescription  to  such  a  right  as  that  to  political 
power.  Prescription  has  been  defined  to  be  that  right 
which  may  arise  from  long,  honest  and  uninterrupted  pos- 
session, though,  before  such  possession,  some  other  person 
or  persons,  and  not  the  possessor,  had  the  ownership.  The 
doctrine  of  prescription  rests  altogether  on  the  presumed 
dereliction  of  the  former  owner.  Now,  if  prescriptive 
sovereignty  means  any  thing,  it  will  not  only  legitimate 
the  title,  of  the  successors  of  a  lawful  sovereign,  but  also 
confirm  the  claim  of  those  now  in  power,  even  against  the 
consent  of  the  governed,  be  they  ever  so  vicious  and  in- 
competent to  govern.  If  the  long,  honest  and  uninter- 
rupted exercise  of  political  rule  is  of  itself  sufficient  to 
confer  a  perpetual  title,  without  regard  to  the  merits  of  the 
present  incumbent,  it  can  be  on  no  other  ground  than  that 
sovereignty,  like  property,  if  once  alienated,  can  never  re- 
vert. But  the  exercise,  of  all  political  power  is  for  the 
happiness  and  protection  of  the  governed.  It  differs,  in  its 
very  essence,  from  propert}7:  it  is  not,  in  its  nature,  aliena- 
ble for  ever,  but  only  so  long  as  the  alienee  is  fully  qua- 
lified to  rule;  and  there  can  be  no  tribunal  to  judge  of  that 
qualification,  but  that  of  the  majority  of  the  people.  A 
prescriptive  right  of  sovereignty  implies  that  it  originated 


198  OF    THE     RIGHT    OF  [Lect.  V. 

honestly,  that  is,  with  the  consent  of  the  governed;  and 
that  from  the  long  and  uninterrupted  exercise  of  it,  those 
who  are  at  present  in  power,  are  equally  in  hy  consent:  but 
this  latter  presumption  endures  only  until  the  people  have 
judged,  that  he  who  is  now  in  power,  is  not  competent  to 
rule  them.  When  that  opinion  is  manifested,  all  presumed 
consent  must  vanish.  If  the  political  power  originated  in 
wrong,  the  doctrine  of  prescription  does  not  apply.  If  it 
originated  in  right  or  consent,  it  is  continued  by  implied 
consent,  which,  in  truth,  is  not  a  prescriptive  title  at  all. 
But  the  friends  of  this  prescriptive  right  are  not  content 
with  this;  they  go  further,  and  contend  that  an  honest  title 
becomes  a  perpetual  one,  simply  by  long  and  uninterrupted 
use.  But  they  must  at  least  admit  that  mere  length  of  time, 
and  uninterruptedness  of  possession  can  raise  no  presumption 
in  favour  of  its  continuance,  unless  there  be  both  knowledge 
and  liberty  in  the  governed,  whereby  they  might  have  effi- 
ciently dissented;  for  if  their  silence  were  the  result  cither 
of  ignorance  or  fear,  no  inference  favourable  to  its  conti- 
nuance can  be  made.  But  allowing  to  the  advocates  of 
this  prescriptive  right,  that  it  originated  honestly?  and  was 
continued  by  the  voluntary  consent  of  the  governed, 
through  a  succession  of  ages;  and  admitting  further,  that 
the  present  possessor  is  fully  qualified  to  govern,  can  these 
facts  confer  on  him  a  title  to  political  rule,  after  the  s 
verned  have  manifested  a  desire  to  change  their  ruler,  or 
the  form  of  their  government?  We  apprehend  not,  be- 
cause the  long,  and  uninterrupted  continuance  of  political 
power  can  have  no  other  effect  than  to  raise  the  presump- 
tion of  a  full  consent  to  all  that  has  passed;  but  it  cannot 
be  considered  as  an  alienation  of  political  power  for  the 
future,  because  it  is  not  of  the  nature  of  political  power  to 
be  granted  or  alienated  absolutely,  iti  reference  to  the  fu- 
ture. On  the  whole,  therefore,  it  may  be  laid  down,  that 
prescription,  like  possession  and  inheritance,  is  at  most  but 


•  Lect.  V.]  CIVIL    GOVERNMENT.  199 

evidence  of  the  right  of  civil  government,  and  can  never 
be  the  source  of  that  right. 

4.  Of  Ancient  Consent  of  the  Governed.  This  is 
another  pretended  foundation  of  the  subsequent  right  of 
civil  government,  and  appears  to  us  equally  untenable  with 
those  we  have  already  examined.  To  compare  the  right 
of  a  sovereign  to  impose  obligations  on  his  countrymen 
and  posterity,  to  the  recognized  right  of  an  individual  to 
charge  and  burthen  as  he  pleases,  the  property  which  he 
transmits  to  his  descendants,  appears  to  us  extremely  ab- 
surd, were  it  on  this  ground  only,  that  the  property  which 
we  transmit  is  our  own,  while  the  personal  and  political 
liberty  of  our  countrymen  is  entirely  theirs,  and  cannot  be 
touched  or  affected,  in  right,  by  any  act  of  ours.  If  my 
progenitor,  immediate  or  remote,  is  incompetent  to  bind  by 
his  acts  my  personal  and  political  rights,  though  he  may 
fetter  the  transmission  of  his  property  as  he  pleases,  it 
seems  to  follow  that  any  number  of  men,  or,  in  other  words, 
any  prior  generation,  is  equally  incompetent  to  bind  a  suc- 
ceeding one.  The  ancient  consent  of  the  governed  can  no 
more  he  construed  to  extend  its  obligatory  force  to  the 
present,  or  to  future  generations,  than  the  present  consent 
of  an  individual  to  remain  in  servitude  or  in  poverty,  can 
bind  his  posterity  to  remain  forever  in  the  like  condition. 
Nor  is  the  case  at  all  varied  by  the  fact,  that  a  positive  and 
great  benefit  was  conferred  on  the  governed  by  the  politi- 
cal rule  to  which  they  consented.  The  benefit  conferred, 
and  the  power  gained,  are  reciprocal,  and  merely  personal. 
A  contrary  doctrine  would  be  pregnant  with  every  mis- 
chief; it  would  be  making  one  set  of  people  judges  of  the 
rights  and  condition  of  another;  and,  still  more,  it  would 
be  establishing  a  fixed  rule  in  regard  to  a  subject  variable 
in  its  very  nature.  For  the  greater  part  of  governments, 
taking  their  rise  in  the  infancy  of  societies  and  states,  are 
adapted  only  to  that  infancy,  and  necessarily  require  pro- 


200  OF    THE    BIGHT    OF  [Lect.  V. 

gressive  alterations,  perhaps  not  merely  in  the  smaller  mat- 
ters of  the  law,  but  also  in  the  fundamental  principles  of 
the  government.  Allowing,  therefore,  the  original  framers 
of  a  government  to  have  done  the  best  for  the  occasion, 
which  in  truth  has  but  seldom  been  the  case,  yet  if  the 
right  in  question  be  allowed,  they  would  have  left  only  a 
curse  to  succeeding  generations.  Who  would  be  thankful 
to  his  progenitors  for  their  wardrobe,  however  ample,  and 
adapted  to  us  at  the  time,  if  he  were  to  receive  it  under  the 
condition  to  wear  it  in  all  the  different  extremes  of  seasons, 
and  amidst  all  the  variety  of  successive  modes? 

5.  Virtues  of  Political  Rulers.  The  claim  to  politi- 
cal rule,  based  on  the  virtues  of  those  who  de  facto  have 
the  charge  of  government,  also  appears  to  us  wholly  unte- 
nable, although  it  was  a  very  favourite  doctrine  with  the 
political  philosophers  of  ancient  times.  However  conspi- 
cuous and  useful  these  virtues  may  be,  they  certainly,  of 
themselves,  can  impart  no  such  authority,  unless  they  be 
thus  respected  by  those  over  whom  jurisdiction  is  claimed. 
For  it  may  well  be  asked,  who  shall  sit  in  judgment  on 
these  virtues,  and  declare  their  existence  and  operation? 
If  those  who  claim  their  possession,  should  in  fact  be  supe- 
rior to  those  who  are  at  present  in  power,  who  shall  pass 
on  the  conflicting  claims,  or  make  a  selection  among  per- 
sons equally  competent?  If,  on  the  other  hand,  those  who 
are  in  power  are  more  virtuous  and  wise  than  all  others, 
how  is  the  fact  to  be  ascertained  but  by  the  ultimate  deci- 
sion of  the  people;  and  when  thus  ascertained,  does  it  lead 
to  any  thing  beyond  the  expediency  of  continuing  them  in 
the  exercise  of  the  political  rule?  If  the  political  rulers  be 
more  wise  and  virtuous  than  any  who  are  not  in  power, 
and  they  be  not  the  sole  judges,  but  the  people  are  to  de- 
cide, and  even  do  decide  that  they  are  pre-eminent  in  every 
qualification;  Plato  and  Aristotle,  indeed,  may  hold  them 
to  be  kings  de  facto  and  de  jure,  but  the  political  philo- 


Lect.  V.]  CIVIL    GOVERNMENT.  201 

sonhy  of  more  modern  times,  and  especially  of  our  own 
day,  must  smile  at  the  strange  conceit,  and  demand  some 
further  recognition  of  their  political  authority,  before  the 
people  can  be'  bound  by  an  allegiance  to  them  To  deny 
to  the  people  this  right,  is  virtually  to  deny  them  the 
pursuit  and  security  of  their  own  happiness;  and  to  trans- 
fer to  their  governors  an  unalterable  right  to  sovereignty, 
because  they  had  wisely  and  virtuously  administered  the 
government,  and  might  continue  so  to  do,  would  be  very 
like  giving  to  your  agent  the  whole  of  your  valuable  pos- 
sessions, in  consideration  of  his  skilful  and  honest  manage- 
ment of  them.  The  knowledge  and  virtues  of  rulers  may, 
indeed,  often  render  it  highly  expedient  that  they  should 
be  continued  in  power;  but  the  righr  of  judging  of  this  ex- 
pediency can  reside  no  where  but  in  the  majority  of  the 
people;  and  this  amounts  to  a  full  rejection  of  the  doctrine, 
that  the  virtues  of  political  rulers  can  be  relied  on  as  a  foun- 
dation of  the  right  of  civil  government. 

Were  we,  indeed,  to  argue  from  matter  of  fact  to  matter 
of  right,  it  must  be  admitted  that  history  furnishes  us  with 
many  striking  examples  of  such  respect  to  wisdom  and  vir- 
tue, as  would  sanction  the  idea  thai  they  of  themselves  con- 
ferred the  right  of  political  power.  Where  the  people  have 
been  free  to  act,  though  ever  so  rude  and  savage,  they  have 
very  generally  selected  for  their  rulers,  those  who  were  dis- 
tinguished for  age  and  experience.  The  kings,  governors 
and  magistrates  selected  by  the  people  in  the  infancy  of  so- 
ciety, were  generally  venerable  for  their  age,  and  admired 
for  their  wisdom,  knowledge,  and  long  experience.  The 
very  names  or  titles  usually  conferred  by  ancient  nations  on 
their  rulers,  indicate  their  great  respect  for  age,  and  the 
virtues  of  the  heart  and  mind.  Alderman,  senator,  elder, 
father,  ancient,  king,  are  all  words  expressive  of  age  or 
knowledge.  The  title  also  of  JJ'tfl,  Rash,  among  the  He- 
brews, of  Sheikh  among  the  Arabians,  and  Heix  among  the 
26 


202  OF   THE    RIGHT    OP  [Lect.  V\ 

Scythians,  are  of  like  import.  Camden  derives  our  word 
king  from  the  Saxon  Cyning,  or  from  the  words  can  and 
ken,  the  former  signifying  power,  and  the  latter,  know- 
ledge, both  of  which  kings  ought,  and,  in  the  simplicity  of 
primitive  times,  were  presumed  to  possess. 

6.  Of  Expediency.  The  last  of  these  supposed  founda- 
tions of  the  right  of  civil  government,  on  which  we  have  to 
remark,  is  Expediency.  In  descanting  on  this  principle,  as 
it  has  been  applied  to  the  original  right  of  civil  government, 
we  have  already  considered  some  of  the  objections  to  which 
it  is  justly  liable.  What  remains  to  be  said  in  regard  to  its 
operation  in  sustaining  the  subsequent  right,  will  be  conse- 
quently more  limited. 

That  expediency,  utility,  durable  happiness,  or  whatever 
other  name  we  choose  to  call  it,  is  the  only  ground  and 
measure  of  human  obligation,  is  a  doctrine  that  has  been 
ably  defended  by  many  eminent  writers,  as  Paley,  Hume, 
Bentham  and  others,  though  it  has  been  warmly  impeached 
by  Mr  Gisborne,  and,  in  the  opinion  of  Macaulay,  entirely 
overturned  by  him.  We  cannot  pretend,  within  the  nar- 
row limits  to  which  we  are  necessarily  circumscribed,  to 
enter  fully  into  so  extensive  and  celebrated  a  question. 
Though  we  differ  from  Paiey  and  others,  in  attiibuting 
the  light  of  government  in  any  case  to  expediency,  yet  we 
would  refer  it  secondarily  to  expediency,  and  primarily  to 
consent;  or,  in  other  words,  we  think  the  expediency  itself 
must  be  ascertained  by  the  general  consent,  or  by  that  of  a 
majority  ol  the  people.  It  is  sufficient  for  our  purpose  to 
assume  expediency  as  the  reason  of  the  institution  of  civil 
government,  and  the  measure  of  its  laws,  its  constitutions, 
and  its  various  modifications;  and,  in  the  sense  which  we 
have  just  intimated,  we  think  it  will  be  found  to  steer  clear 
ol  the  objections  to  which  the  theories  on  either  side  have 
been  supposed  to  be  liable. 


Lect.  V.] 


CIVIL    GOVERNMENT.  203 


'  If  it  were  expedient  originally  to  introduce  government, 
or  any  particular  form  of 'polity,  it  might  be  expedient  sub- 
sequently to  modify  and  accommodate  it  to  various  exigen- 
cies;  and  we  conceive  that  neither  of  these  expediencies 
can    be   ascertained   but   by  the  consent  of  the   governed. 
Expediency  may  justify,  and  almost  force  that  assent;  but, 
no   political   rule,  we  think,  can  justly  exist  until  the  go- 1 
verned  have  pronounced  on  the  expediency,  or,  what  is  the 
same  in  effect,  have  given  their  implied  consent  by  wilful 
silence,  they  having  full  knowledge,  and   perfect  liberty. 
Thus  we  may  reach  the  same  conclusion  as  others,  though 
by  a  different  track.     While  expediency  must  be  the  law 
to  each  man's  conscience,  there  is  no   human  tribunal   to 
enforce  the  law.      Neither  those  who  like  himself  require 
to  be  ruled,  nor  those  whom  nature  hath  ever  so  eminently 
fitted   to  rule,  can  enforce   his  consent  to  any  form  of  go- 
vernment on  the  score  of  expediency.      This  motive,  in- 
deed, should  guide  his  consent,  and,  if  he  wilfully  acts  con- 
trary to  it,  will  mete  out  exactly  the  measure  of  his  guilt 
to  the  great  governor  of  the  world;  but  as  respects  his  fel- 
low beings,  his  assent  is  not  only  the  date,  but  the  source 
of  right,  and  on  this  assent,  express  or  implied,  must  the 
right  of  dominion  solely  depend.      We  have  shown  that  a 
man's   assent  to   actions,   cannot  alter  their  quality;    and 
while  we  contend  that  consent  must  exist  to  justify  a  go- 
vernment, we  do  not  see  the  absurdity  of  Dr  Paley's  expe- 
diency, as  a  principle  to  regulate  that  consent.     That  au- 
thor, indeed,  makes  it  the  ground   of  the  subjects'  obliga- 
tion.    It  is,  without  doubt,  the  motive  which  every  good 
and  wise  man  must  have  in  view,  and  must  propose  to  him- 
self when  he  yields  his  assent  to  any  measure,  whether  pri- 
vate or  publick.      Still,  expediency  per  se  cannot  confer 
the  right,  but  must  be  followed  by  consent,  before  the  ex- 
pediency is  ascertained  or  denned.     And  this  expediency, 
also,  must  not  be  mistaken  for  what  appears  to  be  such  to 


204  OF    THE    RIGHT    OF  [Lect.  V. 

every  narrow  mind,  and  untutored  understanding.  The 
rules  of  general  utility,  or  expediency,  are,  after  all,  the 
rules  of  morals,  when  applied  to  private  affairs,  and  of  po- 
liticks, when  they  are  applied  to  publick  concerns.  They 
are  the  general  rules  deduced  from  large  views  of  human 
life  and  affairs,  and  are  no  more  to  be  left  to  the  invention 
or  the  interpretation  of  vulgar  minds,  than  the  principles 
of  ph)  sicks  are  to  be  established  by  them.  Expediency 
soon  taught  rules  suitable  to  infant  communities;  and  the 
principles  of  truth  are  so  consistent  with  themselves,  that 
they  naturally  expanded,  and  accommodated  themselves  to 
the  extension  and  complication  of  society.  Morals  may 
perhaps  be  compared  to  opticks:  their  original  princ  pies 
are  few  and  simple;  and  he  who  has  measured  a  few  angles 
of  the  rays  of  light,  comprehends  with  facility  the  pheno- 
mena which  lead  the  ignorant  observer  into  a  thousand 
false  notions  as  to  their  causes,  though  experience  keeps 
him  from  practical  mistakes  regarding  them  in  daily  life. 
This  expediency,  we  repeat,  is  no  vulgar,  every-day  conve- 
nience, adapted  to  a  present  particular  exigency;  but  is 
founded  on  general  views;  is  embodied  in  general  rules,  to 
be  found  in  the  books  of  ethicks  and  politicks;  has  been 
practised  by  legislators;  and  is  every  where  taught  by 
wisdom,  and  embellished  by  genius;  animates  an  Aristo- 
tle, and  sparkles  even  in  the  system  of  a  Lucretius. 

The  very  justice  of  referring  the  original  right  of  civil 
government  to  consent,  is  the  dictate  of  this  expediency. 
For  if  God  had  determined  we  should  be  happy  at  all 
events,  and  with  this  view  had  imposed  civil  society  and 
political  government  upon  us  at  our  very  creation,  it 
would  have  been  tantamount  to  depriving  us  of  free  agency, 
not  only  in  this,  but  in  other  matters.  Divine  wisdom, 
however,  has  acted  towards  man  in  this  matter  as  in  other 
objects  of  good  presented  to  his  choice;  it  lias  given  to  man 
a  liberty  or  power  of  choosing,  and,  of  course,  of  consenting 


Lect.  V.]  CIVIL    GOVERNMENT.  205 

or  dissenting;  while,  at  the  same  time,  it  has  proposed  mo- 
liv,  ?  for  determining  that  choice.  And  in  deciding;  on  this 
question  from  these  motives,  we  should  not  fail  to  remem- 
ber, that  if  we  consider  expediency  as  any  thing;  more  than 
a  guide  (or  our  consent,  we  should  necessarily  be  obliged 
to  have  ascertained,  before  we  did  any  one  act,  whether  it 
were  actually  expedient,  and  correspondent  with  the  design 
of  God  in  the  government  of  the  world;  whereas,  accord- 
ing to  what  has  been  already  urged,  it  is  sufficient  for 
others  that  our  consent  has  been  obtained;  and  for  our  own 
consciences,  that  we  have  consented  on  grounds  which  the 
common  sense  of  mankind  conceives  to  be  just. 

Dr  Paley's  doctrine,  that  'every  man  must  judge  for 
himself  concerning  the  general  expediency  of  publmk  mea- 
sures/ has  been  objected  to  by  Gisborne,  Maeaulay  and 
others.  But  their  objections  soem  equally  applicable  to 
their  own  theory  of  consent.  The  objections  to  which  we 
aliude,  are  the  confusion  and  anarchy  which  would  be  in- 
troduced by  the  variety  and  inconsistency  of  men's  opi- 
nions, and  the  inconvenience  of  preferring  these  to  the 
voice,  will  and  consent  of  the  community.  But,  in  reality, 
what  advantage  in  these  particulars  has  the  principle  of 
consent  over  that  of  expediency?  It  is  obvious  to  the  least 
reflection,  that  consent,  however  arbitrarily  it  may  be  sup- 
posed to  bind  others,  must  proceed  in  every  man's  mind 
on  some  reason  or  motive,  and  the  question  is  as  to  this 
motive.  Whether  that  motive  be  the  good  of  the  commu- 
nity in  particular,  or  decorum,  or  virtue,  (allowing  them, 
for  the  sake  of  argument,  to  be  essentially  different,)  is  it 
not  apparenWthat  there  is  in  men's  minds  as  much  contra- 
riety of  opinion  as  to  the  character  of  these,  as  there  can  be 
imagined  to  exist  respecting  expediency?  Is  not  every 
man  as  likely  to  differ  from  his  neighbour  as  to  what  things 
fall  under  the  denomination  of  particular  good,  decorum, 
virtue  &c.  as  he  is  on  questions  of  general  utility  or  expe- 


206  OF    TPTE    RIGHT    OP  [Lect.  V. 

diency;  and  must  not  his  consent  therefore,  (while  it  is  as 
completely  within  his  own  power,  as  is  his  opinion  as  to 
what  is  expedient,)  be  quite  as  likely  to  be  given  for  the 
common  weal?  We  can,  for  our  part,  discover  no  manner 
of  difference.  What  has  induced  men,  in  violent  and  cor- 
rupt times,  to  pull  down  an  ancient  establish  nent,  and 
erect  a  new  constitution  and  appoint  new  functionaries? 
Generally,  no  doubt,  the  wish  of  the  nation;  or,  in  other 
words,  its  strongly  expressed  consent.  But  what  caused 
this  wish,  this  consent,  but  the  vexations  of  the  old  system, 
on  the  one  hand,  and  the  advantages  hoped  for  in  the  new, 
on  the  other?  considerations  which  made  the  expediency 
obvious,  at  least  to  a  majority  of  the  thinking  part  of  the 
community.  Individuals,  then,  must  judge,  and  give  their 
consent  as  to  questions  of  expediency;  but  whilst  this  is 
the  case,  no  wise  and  virtuous  man  will  see  it  expedient  to 
assist  in  any  change,  unless  a  clear  majority  deem  it  equal- 
ly so;  or,  if  you  please,  until  he  is  assured  of  the  consent 
of  a  clear  majority.  In  truth,  it  is  apparent,  on  weighing 
the  different  foundations  which  have  been  assigned  to  the 
right,  of  civil  government,  whether  original  or  subsequent, 
that  they  all  proceed  on,  and  have  at  least  a  remote  refer- 
ence to,  the  notion  of  expediency,  or  consent,  or  both. 

If  we  again  cursorily  advert  to  the  foregoing  six  grounds 
on  which  political  power  has  been  supposed  to  rest,  we 
shall  not  fail  to  find  this  the  case.  Possession  and  in- 
heritance have  gained  something  like  the  character  of  a 
right,  partly  from  the  consent  which  is  to  be  presumed 
from  them,  and  partly  from  the  inconveniences  which  have 
generally  been  found  to  result  from  a  hasty*change,  and 
rapid  succession  of  governors.  So,  also,  prescription  is 
indebted  for  the  force  attributed  to  it,  to  the  same  princi- 
ple, viz.  dereliction,  or  implied  consent.  The  resort  to 
the  ancient  consent  of  the  governed,  amounts  almost  to  an 
admission  of  the  principle  we  contend  for,  not  only  because 


Lect.  V.]  CIVIL    GOVERNMENT.  207 

if  one  generation  has  the  privilege  to  consent,  another  can 
hardly  he  denied  it,  hut  because  by  resembling  these  obli- 
gations on  posterity,  to  the  charges  which  men  sometimes 
make  on  the  inheritances  which  they  leave  to  their  heirs, 
the  similarity  of  this  contract  to  others  is  admitted;  which 
is  enough,  as  we  before  stated,  to  draw  afier  it  the  prin- 
ciple we  have  been  advocating.  So,  also,  the  virtues 
of  political  rulers,  when  appealed  to  for  the  same  purpose, 
is  a  principle  clearly  proceeding  on  the  idea  of  their  ser- 
viceableness  to  the  governed,  and  this,  again,  is  nothing 
but  another  name  for  expediency;  and  that  expediency  is 
presumed  to  be  ascertained  by  consent,  because  it  is  be- 
lieved that  men  will  consent  only  to  what  they  find  expe- 
dient. So,  on  the  other  hand,  consent  may  be  said  to  im- 
ply expediency,  because  the  experience  of  the  expediency 
must  be  supposed  to  have  preceded  and  elicited  the  con- 
sent. 

We  should  not  have  dwelt  thus  long  and  pertinaciously 
on  these  topicks,  had  not  these  various  theories,  ground- 
less as  they  are,  assumed  an  importance  from  the  lustre  of 
the  names  with  which  they  are  connected,  and  had  not 
bad  men  and  designing  politicians  attempted  to  justify 
acts  in  political  rulers,  which  the  laws  of  God,  and  sound 
morals  unite  in  condemning  in  others.  From  this  source 
arose  the  preposterous  distinction  which  politicians  are 
sometimes  bold  enough  to  make,  between  moral  and  politi- 
cal virtue,  and  which  is  a  monster  generated  by  sophistry, 
fostered  by  state  policy,  used  by  "wicked  ambition,  and  up- 
held by  slavery,  and  vulgar  prejudice.  In  an  enlightened 
and  virtuous  community  this  distinction  can  find  but  few 
supporters;  it  is,  however,  a  mischievous  and  dangerous 
doctrine  in  the  hands  even  of  a  few;  and  the  people  of  no 
country  are  so  virtuous  and  wise  as  not  to  be  sometimes 
misled  by  doctrines  the  most  unsound.  It  is  true  that 
divine  wisdom  hath  implanted  a  powerful  conviction  in 


20S  OF    THE    RIGHT    OF  [Lect.  V. 

men's  minds,  of  their  right  to  happiness;  so  that  most  of 
the  artifices  by  which  they  have  been  occasionally  deluded 
into  an  abandonment  of  the  bulwarks  of  their  felicity,  have 
been  ultimately  detected.  The  truth  is,  that  governments 
have  so  often  resulted  from  chance;  have  so  frequently 
grown  up  by  successive  and  distinct  accidents;  been  ad- 
ded to  by  subtle  ambition;  and  variously  modified  by 
change  of  times  and  tempers;  that  it  is  no  matter  ot  sur- 
prise that  their  original  principles  of  construction  should 
have  been  at  times  forgotten,  and  their,  objects  and  advanta- 
ges lost  sight  of.  Princes,  long  accustomed  to  rule,  at 
length  imagined  that  both  the  country,  and  those  whom 
they  governed,  were  their  patrimony;  and  from  the  long 
abuse  of  power,  conceived  that  they  could  do  no  ivrong, 
as,  what  is  still  more  strange,  the  people,  long  subdued  to 
submission,  almost  forgot  they  were  not  designed  to  be 
slaves. 

When  we  speak  of  the  original  principles  of  govern- 
ment, we  mean  such  as  are  strictly  so;  that  is,  such  as  are 
fundamental,  and  which  ought  to  be  the  basis  of  all  go- 
vernments: not  of  such  views  as  sometimes  actuate  the 
heads  of  two  contracting  parties,  the  one  consenting  to  be 
ruled,  the  other  to  rule,  on  certain  principles.  For  it  is 
sufficiently  obvious  how  political  societies  grew  up,  and 
that  the  spectacle  was  not  unfrequent,  of  a  whole  commu- 
nity of  men  basely  submitting  themselves  to  unrestricted 
servitude.  Indeed,  if  we  were  to  be  bound  by  the  po- 
litical compacts,  as  by  the  bonds  of  our  ancestors,  it  is 
pretty  plain  that  there  is  some  time  in  the  historj'  of  most 
nations,  from  which  tyranny  might  date  the  existence  of  a 
compact  between  subjects  and  rulers,  whose  observance 
would  perpetuate  the  most  lawless  oppression.  As  to  the 
original  formation  of  societies,  we  know  them  to  have 
been  too  limited  in  their  nature  and  occasions,  to  provide 
for  the  numerous  exigencies,  and  essential  changes  of  con- 


Lect.  V.]  CIVIL    GOVERNMENT.  209 

dition,  which  would  occur  in  their  political  progress;  so 
that  the  just  limits  of  the  reciprocal  duties  of  rulers  and 
subjects,  could  not  be  defined.  But  if  we  refer  even  to 
the  families  of  patriarchs  and  shepherd  kings,  (those  first 
faint  images  of  states)  we  shall  find  in  them  the  principles 
which  we  contend  are  the  only  ones  on  which  government 
of  any  kind  can  be  justly  founded.  It  is  not  to  be  sup- 
posed that  the  natural  affection  of  fathers,  during  these  pa- 
triarchal ages,  imposed  any  other  than  salutary  restraints 
on  those  whom  they  ruled,  or  any  more  than  were  requi- 
site for  restraining  either  the  sallies  of  youthful  passion 
yet  unsubdued,  or  correcting  the  errors  of  reason  yet  un- 
disciplined. There  is  no  other  foundation  for  parental 
power;  and  when,  on  the  parents'  decease,  the  government 
of  the  family  descended  to  the  elder  sons  and  branches  of 
the  family  in  succession,  they  could  administer  the  sacred 
trust  only  with  the  view  of  counsel  and  protection  to 
those  whom  they  regarded  as  equally  entitled  to  happiness 
as  themselves,  and  who  were  free,  had  they  so  chosen,  to 
seek  for  counsel  and  protection  at  other  hands.  So  that 
whether  we  seek  the  foundation  of  the  right  of  govern- 
ment in  general  principles,  or  trace  it  in  the  ancient  nu- 
clei of  societies,  we  are  conducted  to  the  same  conclusion, 
viz.  that  government  is  the  creature  of  communities  for 
their  good  order,  melioration,  defence  and  happiness;  and 
that  the  people  are  the  sole  judges  of  what  is  convenient 
and  conducive  thereto. 

But  if  in  all  of  the  foregoing  theories  even  an  implied 
consent  is  excluded,  and  their  respective  advocates  refer 
the  right  of  civil  government  to  mere  possession,  inheri- 
tance, prescription,  ancient  consent,  virtues  of  rulers,  or, 
lastly,  expediency,  wc  can  agree  with  none  of  them:  for  I 
may  possess  another's  property,  and  it  gives  me  no  manner 
of  title;  I  may  leave  to  my  heir  estates,  but  they  cannot 
enjoy  them  unless  I  had  been  rightfully  possessed;  I  may 
27 


£10  OF    THE    RIGHT    OF    CIVIL    GOVERNMENT.  [Lect.  V. 

hold  the  estate  of  another  during  any  period,  and  no  pre- 
scription can  per  se  legitimate  my  title.  So,  also,  I  may 
hold  these  estates  with  the  consent  of  the  owner,  but  my 
right  to  hold  terminates  the  moment  he  withdraws  his  con- 
sent. I  may  make  better  use  of  these  estates,  and  may  ad- 
minister them  more  skilfully  and  virtuously  than  would  the 
owner,  and  yet  these  circumstances  could  not  add  one  par- 
ticle of  right  to  my  claim  to  retain  them;  and,  lastly,  I  may 
be  so  circumstanced  in  regard  to  these  estates,  that  it  would 
be  highly  expedient  for  the  owner  to  permit  me  to  remain 
in  possession;  but  no  one  could  imagine  that  this  would 
confer  on  me  a  right  to  withhold  them  against  the  wishes 
of  the  owner.  Whence  then,  in  all  these  cases,  can  any 
right  proceed,  but  from  the  consent  of  the  true  owner. 
This,  we  conceive,  is  the  precise  case  with  civil  or  politi- 
cal power.  It  originates  in  consent,  and  is  continued  by 
consent;  and  any  other  notion  of  government  is  abhorrent 
to  common  sense,  and  sound  reason;  whilst  the  administra- 
tion of  it  on  any  other  principle  will  sooner  or  later  in- 
volve it  in  destruction.  Philosophy  itself,  alarmed  at  the 
idea  of  subverting  existing  institutions,  and  of  appealing  to 
the  consent  of  injured  and  uninstructed  communities,  has 
sought  indeed  sometimes,  with  an  excusable  prejudice, ;|( 
for  other  props  to  the  political  system:  but  she  may  remem-  ' 
ber  on  the  one  hand,  that  in  extreme  cases  the  people  have 
never  been  long  deluded  by  this  sophistry;  and,  on  the  '■  , 
other,  that  the  increasing  melioration  of  mankind  renders 
such  an  appeal  every  age  less  alarming. 


LECTURE  VI. 


OF    THE    EFFECTS    OF    SOCIETV    AND    GOVERNMENT    ON    THE 
NATURAL  RIGHTS  OF  MAN. 

(1.)  Jurisdiction  and  The  act  of  associating  himself  with  a 
Law  the  necessary  civil  society,  produces  a  material  aitera- 
result  of  the  change   ,.  ,,         .    ,  .        _  .-,..,,         .  , 

f^m  „  *»„.<>  ~e  „t    tion  in  the  rights  of  an  individual.     At 
irom  a   state  of  na-  o 

ture  to  that  of  civil  liberty  before  that  act,  to  assert  his  rights, 
and  to  redress  his  wrongs,  without  con- 
sulting any  mind,  or  using  any  force  but  his  own,  he  binds 
himself  by  the  union  to  take  the  general  will  of  the  com- 
munity as  the  guide  of  his;  and  while  he  gains  the  advan- 
tage of  having  on  his  side  a  prevailing  force,  to  aid  him  in 
the  assertion  of  his  civil  rights,  he  is,  on  the  other  hand, 
obliged  to  renounce  all  resort  to  his  own.  In  all  matters, 
therefore,  in  which  the  publick  have  any  concern,  the  in- 
dividual particularly  interested  is  obliged  to  submit  to  the 
common  understanding,  which  resides  in  the  legislature 
and  the  judiciary;  and  to  the  common  force,  which  is 
wielded  by  the  executive. 

The  standard,  moreover,  whereby  the  quality  of  his  ac- 
tions is  to  be  estimated,  is  considerably  altered:  for  it  can 
no  longer  be  his  individual  good,  nor  even  the  general  good 
of  mankind,  that  is  to  define  his  rights,  since  many  things, 
innocent  as  they  affect  individuals,  or  the  general  society 
of  man,  may  assume  a  contrary  character  when  considered 
in  reference  to  the  particular  community  of  which  he  is  a 


212  EFFECTS  OF  GOVERNMENT         [I.cct.  VI 

member.  Hence  it  follows,  that  instead  of  consulting  his 
own  felicity,  with  regard  at  the  same  time  to  the  general 
good  of  mankind,  a  member  of  a  civil  society  may  more 
properly  be  said  to  consult  his  happiness  with  regard  to  the 
peace  and  order  of  that  society  to  which  he  is  attached. 

The  difference  thus  caused  in  the  rights  of  man,  may  be 
described  as  immediate  and  mediate;  that  is,  it  arises  either 
from  civil  union  itself,  or  from  the  civil  laws  which  are  in- 
stituted after  the  union. 

Some  rights  are  affected  by  the  immediate  operation  of 
the  civil  compact  or  union  itself:  such,  for  example,  are 
those  which  arise  from  an  injury,  either  before  or  after  it  is 
committed;  viz.  the  defence  of  one's  self  at  discretion,  and 
the  pursuit  of  reparation  for  a  damage  sustained.  Both  of 
these  rights  are,  by  the  very  act  of  union,  considerably 
modified;  and  sometimes,  under  certain  circumstances,  are 
wholly  taken  from  the  individual,  and  vested  in  such  func- 
tionaries as  the  publick  have  constituted  for  the  express 
purpose  of  ascertaining  and  enforcing  such  rights. 

Other  rights,  untouched  by  the  mere  act  of  civil  union, 
are  nevertheless  understood  to  be  subject  to  such  restric- 
tions as  the  common  will  of  the  society  may  afterwards,  from 
time  to  time,  impose  on  them.  The  relinquishment  of  the 
right  of  avenging  our  own  wrongs,  is  necessarily  immedi- 
ate, by  the  very  nature  and  object  of  government,  or  rather 
of  the  agreement  to  be  governed:  but  after  political  union, 
those  rights  which  are  not  affected  by  the  mere  act  of 
union,  remain  in  full  force  until  the  society  either  modifies 
or  abolishes  them.  Thus,  to  give  an  example  of  the  se- 
cond species  of  rights,  there  is  no  reason  why  a  man  should 
not  be  permitted  to  vend  the  products  of  his  labour  at  any 
market  he  pleases.  Every  citizen,  therefore,  exports  and 
imports  what  he  pleases,  until  the  laws  partially  or  wholly 
forbid  the  one  or  the  other. 


t.ect.  VI.]  «"W    NATURAL    RIGHTS.  213 

Again;  before  this  union,  men  have  a  right  to  contract 
marriage  in  any  form  they  please:  the  act  of  political 
union  leaves  this  right  unimpaired,  and  we  may  enter  into 
this  contract  in  any  mode  we  see  fit,  until  the  society  ex- 
pressly legislates  on  the  subject.  From  what  has  been  said 
the  student  at  once  perceives  that  the  right  to  judge  of  and 
to  vindicate  many  of  our  natural  rights,  is  transferred  at 
once  to  the  society  of  which  we  become  political  associates: 
whereas  many  other  natural,  and  all  our  adventitious  rights, 
remain  unimpaired  until  the  society  expressly  or  impliedly 
modifies  or  annuls  them. 

Jurisdiction  and  law  of  some  kind  are,  as  we  have 
stated,  the  natural  consequence  of  civil  union.  By  juris- 
diction we  mean  the  right  of  a  civil  society  to  make  laws, 
to  determine  matters  in  dispute  between  its  members,  and 
to  compel  the  parties  to  submit  to  such  determination.  In 
its  largest  sense,  it  means  the  sovereignty  or  power  resid- 
ing in  a  state  or  nation,  by  which  it  is  enabled  rightfully  to 
legislate,  and  to  determine  in  reference  to  all  matters  which 
concern  the  territory  or  soil,  to  all  moveables  therein,  and 
to  the  conduct  of  all  persons  who  reside  within  its  limits, 
whether  as  citizens  or  strangers,  and,  finally,  in  regard  to 
the  claim  of  all  others,  be  they  nations  or  individuals,  who 
assert  a  right  over  the  country,  or  any  part  thereof,  or  over 
the  persons  or  moveables  therein.  This  extensive  power, 
with  which  every  independent  nation  is  clothed,  is  usually 
partitioned  out  by  the  collective  body,  and  exercised  by 
their  three  great  functionaries,  the  legislative,  judicial  and 
executive  branches  of  the  government.  But  however  this 
power  may  in  fact  be  exercised,  it  will  be  found  that  there 
is  no  conceivable  jurisdiction  which  may  not  be  referred  to 
one  or  more  of  the  three  following  heads;  first,  jurisdic- 
tion in  locum,  or  that  which  is  strictly  territorial,  being 
not  only  confined  within  certain  local  boundaries,  but  flow- 
ing solely  from  the  relation  subsisting  between  the  commu- 


014  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

nity  and  the  place  over  which  the  power  is  claimed.  Thua, 
every  state  or  nation  has  jurisdiction  in  locum  within 
its  territorial  limits.  The  state  of  Maryland  has  this  spe- 
cies of  jurisdiction  within  her  own  limits.  The  United 
States  have  it  within  the  District  of  Columbia,  and  also 
within  their  forts,  arsenals  &c;  but  the  other  jurisdiction 
exercised  by  the  Union  is  not  strictly  in  locum,  though 
it  be  restricted  within  the  limits  of  the  United  States,  but 
flows  from  other  sources,  as  we  shall  have  occasion  to  no- 
tice hereafter. 

Secondly.  Jurisdiction  in  personam,hy  which  is  meant, 
not  merely  the  power  to  compel  persons  to  submit  them- 
selves to  the  law,  (for   in  this  view  all  jurisdiction  may 
be  regarded  as  ultimately  in  personam,)  but  that  juris- 
diction which  flows  from,  and  is  exercised    in  respect  of 
some   special   personal  privileges   claimed  by  those  over 
whom    it   is   to    be   exercised,   and  which    privileges    ex- 
empt such  persons  from  the  ordinary  judicatories  of  the 
country.     Thus,  for  example,  the  peers  of  England  claim 
to  be  judged  by  their  peers.      So,  also,  both  in  England 
and  on   the  continent,  the  pious  fervour  of  a  former  age 
bestowed    on  all  ecclesiastics  an  exemption  of  their  per- 
sons and  property  from  the  control  of  the  ordinary  tri- 
bunals of  the  country;    and  the  emperor  Theodosius  ex- 
tended this  privilege  to  all  persons  attached  to  his  private 
domain,  whether  freeman,  freedman  or  villain,  and  ordered 
that  in  all  matters,  civil  and  criminal,  in  which  they  were 
concerned,  a  special   jurisdiction    should    be   constituted, 
entirely  independent  of  the  ordinary  judges.     The  empe- 
ror Constantine  granted  various  immunities  to  the  veterans, 
and,  among  the  rest,  that  they  and  their  sons  should  be  pri- 
vileged to  sue  and  be  sued  before  the  Praetorian  Prsefect, 
-  and  be  in   no  way  amenable  to  the  inferior  judges.     So, 
likewise,  the  emperor  Leo  ordained  that  all  commanders  of 
the  fortresses,  and  the  generals  and  officers  of  the  frontier 


Lect.  VI.]  ON    NATURAL    RIGHTS.  215 

militia,  should  be  subject  to  no  other  jurisdiction  than  that 
of  a  certain  dignitary  of  his  imperial  household.  In  like 
manner,  to  come  to  our  own  time  and  country,  the  presi- 
dent, vice-president,  and  all  civil  officers  of  the  United 
States,  can  be  removed  only  by  impeachment  before  the 
senate;  and  ambassadors  and  consuls  have,  under  our 
constitution,  the  privilege  of  being  amenable  only  to  the 
federal  courts.  In  all  these,  and  numerous  other  instan- 
ces easily  cited,  the  jurisdiction  is  said  to  be  in  perso- 
nam. 

But  this  expression,  'jurisdiction  in  personam,'  has  also 
a  distinct,  and  a  more  popular  acceptation,  in  which  sense 
it  is  contrasted  with  the  antagonist  expression,   'jurisdic- 
tion in  rem.'     By  the  former  is  simply  meant,  that  the 
actor  or  plaintiff  is  only  entitled  to  call  on  the  reus  or  de- 
fendant to  respond   personally,  in   damages;   and    by   the 
latter,  that  the  claim  set  up  can  be  enforced  against,  and 
satisfied  out  of  property  attached  within  the  jurisdictional 
limits  of  a  particular  tribunal.      Thus,  for  example,  a  court 
of    admiralty   will   proceed   in  persona?7i   to   vindicate   a 
mere  personal  claim,  arising  either  ex  contractu,  or  ex  de- 
licto: but  if  there  be  any  charge  or  lien  on  the  defendant's 
property,  or  if  he  cannot  be  found  within  the  territory, 
but  his  property  is  there,  the  court  then  proceeds  in  rem, 
that  is,  against  his  property,  as  a  means  of  compelling  him 
to  respond  to  judicature.      This  distinction,  however,  re- 
gards rather  the  process  of  the  tribunal,  than  its  jurisdic- 
tion, for   all   proceedings   in  rem   may   be   considered   as 
means  to  compel  the  judicial  appearance  of  the  defendant; 
and  though  process  in  personam,  and  in  rem,  often  issue 
in  the  same  cause,  it  is  competent  for  the  defendant  to  re- 
move the  attachment  from  the  specific  property,  by  other- 
wise effectually  securing  to   the   actor   the  benefit  of   his 
claim,  in  the  event  of  its  being  established. 


216  EFFECTS    OF    GOVERNMENT  [Lect.  VI- 

Thirdly.  Jurisdiction  in  subjectam  materiam.  This 
flows  from  the  peculiar  nature  of  the  subject  matter  in 
controversy,  and  is  often  referred  to  the  compound  consi- 
deration of  locality,  person,  and  the  nature  of  the  grava- 
men itself.  Hence  we  find  judicial  power  divided  into 
various  classes;  and  tribunals  are  constituted  to  adjudicate 
on  matters  referrible  only  to  one  or  more  of  these  classes. 
In  such  case,  the  court  is  said  to  have  jurisdiction  hi  sub- 
jectam materiam.  Under  this  view,  the  cardinal  divi- 
sion of  jurisdiction  is  into  civil  and  criminal;  but  there  are 
also  many  subordinate  divisions;  thus,  we  have  natural, 
maritime,  military,  ecclesiastical,  equitable,  fiscal,  and 
common  law  jurisdictions,  and  many  others  still  more  li- 
mited. 

So,  likewise,  courts  may  possess  a  general  jurisdiction 
in  subjectam  materiam,  but  a  limited  or  personal  one  as 
to  the  parties  litigant;  in  which  case,  however,  it  would 
be  better  to  speak  of  the  jurisdiction  as  in  ■personam, 
since  the  chief  object  of  this  three-fold  division  of  juris- 
diction is  to  give  a  distinctive  name  to  each,  as  it  flows 
mainly  from  place,  personal  privilege,  or  the  nature  of  the 
controversy.  Hence,  though  a  general  jurisdiction  may 
be  exercised  in  locum,  in  personam,  in  subjectam  ?na- 
teriam,  yet  each  should  take  its  appropriate  name,  as  it  is 
characterized  by  one  or  the  other  of  the  three  enumerated, 
sources  of  jurisdiction.  So,  again;  though  there  are  distinct 
systems  or  codes  of  law  usually  applied  to  the  various  clas- 
ses into  which  this  last  species  of  jurisdiction  is  divided,  yet 
the  character  and  limits  of  each  division  are  ascertained  ra- 
ther by  the  nature  of  the  controversy  than  by  the  code  of 
laws  by  which  a  particular  tribunal  may  profess  to  be  main- 
ly directed.  So,  also,  in  the  exercise  of  all  jurisdiction, 
controversies  are  often  affected  by  different  systems  of 
law,  varying  according  to  circumstance:  hence  it  is  that  the 
student  will  often  hear  the  expressions  (lex  forif   Hex  loci 


I.ect.  VI.]  ON    NATURAL    RIGHTS.  217 

contractus;'  Hex  loci  rei  acta?;'  Hex  loci  rei  sitae,'  &c. 
which  simply  mean  that  the  cause  in  judicature  must  be 
governed,  according  to  circumstances,  by  the  law  of  the 
tribunal  appealed  to,  or  of  the  country  where  the  contract 
was  made,  or  of  that  in  which  it  is  to  be  performed,  or  of 
that  where  the  res  subject  a  is  found.  These  topicks  are 
only  briefly  alluded  to  at  this  time,  as  coming  within  the 
scope  of  my  general  design,  which  is  to  shadow  forth  the 
elements  and  leading  doctrines  of  the  entire  system  of  ju- 
risprudence.    But  to  proceed. 

The  student  will  find  that  jurisdiction  has  been  generally 
divided  by  the  writers  on  natural  and  political  law,  into 
two  kinds,  viz.  that  over  persons,  and  that  over  things, 
though  the  first  may  very  properly  include  the  latter;  for 
though  the  right  to  a  thing  be  involved,  still  the  contro- 
versy touching  the  right,  is  between  persons.  This  dis- 
tinction of  jurisdiction  into  two  sorts  is  made  in  reference 
to  the  sources  whence  society  and  government  derive  the 
right  to  decide;  for,  as  has  been  already  stated,  one  case  in 
which  persons  are  obliged  to  abide  by  the  determination  of 
a  community  is,  that  the  thing  about  which  the  controver- 
sy arises,  as,  for  example,  land,  is  under  the  control  of  that 
community,  though  the  parties  litigant,  or  one  of  them, 
may  be  members  of  a  different  community.  In  this  case, 
then,  it  is  manifest  that  the  jurisdiction  which  is  claimed 
flows  solely  from  the  control  which  the  community  has 
over  the  res  subject  a.  So,  likewise,  jurisdiction  may 
arise  over  persons,  either  because  they  are  members  of  the 
community,  or  because  they  are  temporarily  in  the  coun- 
try, in  which  latter  case  they  owe  a  temporary  allegiance, 
and  are  bound  to  submit  to  its  laws,  and  to  the  jurisdiction 
of  its  courts.  All  jurisdiction  however,  as  is  well  ob- 
served by  Grotius,  is,  in  one  sense,  over  persons,  since  it 
consists  in  a  right  to  determine  controversies  between  two 
or  more  persons,  and  ultimately  to  compel  them  to  submit 
28 


2 IS  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

to  the  determination,  be  it  to  do  or  forbear  an  act,  or  to 
receive  or  abandon  a  thing.      Thus,  for  example,  if  A  at- 
taches the  goods  of  B,  his  absent  debtor,  or  brings  eject- 
ment against  land  claimed  by  B,  who  is  not  a  citizen,  nor 
resident  within  the  community,  and  judgment,  with  execu- 
tion, is  had  thereon,  the  jurisdiction  which  has  been  exer- 
cised arises,  it  is  true,  from  the  fact  that  the  goods  or  land 
were  within  the  court's  jurisdiction;  but  still,  as  respects 
the  operation  of  that  jurisdiction,  it  is  also  personal;  for 
it  compels  B,  in  the  first  instance,  to  appear  and  defend  his 
interests,  or  to   be  for  ever  bound  by  the  decree  or  judg- 
ment which   is  past;    and   the  property  is    thereby  fully 
vested  in  A,  the  plaintiff.     The  foundation  of  all  civil  sub- 
jection, or  jurisdiction  over  persons,  is  laid,  either  imme- 
diately or  remotely,  in  such  a  civil  union  as   places  such 
persons  under  the  control  and  protection  of  the  society. 
We  shall  have  occasion  presently  to  consider  the  nature  of 
this  power  over  persons;  and  even  now  it  must  appear  to 
the  student  sufficiently  intelligible  as  to  its  origin  and  ge- 
neral  objects.     But  the  jurisdiction    claimed   by  govern- 
ments over  things,  when   this   exercise  of  power  is  to  af- 
fect the  rights  of  those  who  are  not  members  of  that  com- 
munity, is   not  quite  so  obvious.      We   shall  therefore,  at 
this  time,  advert  to  the  origin  and  nature  of  this  species  of 
jurisdiction,  and   then   recall  your  attention  to  that  over 
persons,  with  its  various  restrictions  or  limitations. 

When  a  number  of  individuals  have  united  themselves 
into  a  community,  and  have  settled  on  a  tract  of  land,  as, 
for  example,  an  island,  or  an  uninhabited  country,  which 
they  take  possession  of,  and  claim  by  some  natural  or  other 
boundaries;  such  a  people  found  their  title  in  what  is  called 
Occupancy  in  gross,  which  means  that  the  right  of  property 
has  been  vested  in  the  whole  body  or  community  of  men, 
and  that  no  individual  has  any  property,  or  exclusive  right. 
The  effect,  then,  of  general  occupancy  being  to  vest  in  the 


Lect.  VI.]  ON    NATURAL    RIGHTS.  219 

collective  body  a  full  property,  it  is  thereby  enabled  to  ex- 
clude all  other  nations  and  individuals  from  any  participa- 
tion in  this  property,  in  the  same  manner  as  particular  oc- 
cupancy, on  the  other  hand,  vests  a  similar  right  in  an  in- 
dividual to  exclude  all  others  from  interfering  with  the  par- 
ticular parcel  of  land  thus  appropriated  to  himself.     This 
right  of  general  property  in  a   community  has  been  de- 
nominated sovereignty  or  jurisdiction,  in  order  to  distin- 
guish it  from  the  private  right  which  the  separate  members 
have   in   their  respective  shares,   which  is  strictly    called 
property.      Occupancy  in  gross  acquires  to  the  society,  in 
the  very  first  instance,   a  general  property;  but  after  the 
society  has  permitted  individuals  to  appropriate  to  them- 
selves particular  parcels,   either   by  occupancy,  (which  is 
founded  on  the  tacit  or  implied  consent  of  the  community,) 
or  by   the  express   grant  of  that  community,   the  society 
then  ceases  to  have  property  in   such  appropriated  lands, 
but  retains  over  the  whole,  and  their  owners,  a  general  or 
publick  right,  called,  as  we  have  said,  jurisdiction  or  sove- 
reignty; and  the  country  over  which  it  is  exercised  is  de- 
nominated its  territory.      Two  effects  arise  from  this  sove- 
reignty.    The  first,  which  is  immediate  and  necessary,  is 
that  none  who  are  not  members  of  the  body  which  acquired 
the  whole  by  general  occupancy,  and  now  exercises  juris- 
diction, are  capable  of  having  private  property  in  such  ter- 
ritory; so  that  no  member  of  the  community  can  transfer 
anv  property  in  the  soil  to  an  alien,  nor  can  an  alien  inherit 
it;  and  both  these  disabilities  remain  forever,  and  under  all 
circumstances,   unless  the  community  sees  fit  to  remove 
them.      The  second  effect  to  which   we   allude  relates  to 
moveables,  and  is  not  the  natural  or  immediate  result  of  oc- 
cupancy  in    gross,    or   of  the   sovereignty   or  jurisdiction 
which  remains  after  the  establishment  of  individual  pro- 
perty, but  is   merely  consequential,  or  rather  accidental. 
The  effect  we  speak  of  is,  that  as  an  alien  cannot,  in  virtue 


220  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

of  the  first  principle,  even  enter  within  the  limits  of  such 
territor)7,  unless  with  the  consent  of  the  society,  it  follows 
that  he  cannot  come  thither  even  to  take  away  moveables, 
over  which  the  society  never  had  any  right  of  occupancy, 
or  jurisdiction,  and  which  have  been  expressly  relinquish- 
ed by  their  owners  in  favour  of  such  alien.  Hence,  under 
the  mere  lex  naturae,  an  alien  can  be  neither  grantee,  devi- 
see nor  heir,  either  of  land  or  of  goods;  not  of  the  former, 
because  its  proprietor  received  it  subject  to  the  transcen- 
dental control  of  the  community;  not  of  the  latter,  be- 
cause the  grantee,  legatee  &c.  cannot  come  into  the  terri- 
tory to  take  them  away,  though  in  all  other  respects  he 
may  have  a  right  in  them.  With  regard  to  moveables 
therefore,  if  the  laws  of  the  country  did  not  prohibit  it,  the 
grantor  or  his  executor  &c.  might  transmit  them  to  the 
alien  claimant,  and  no  principle  of  natural  jurisprudence 
would  interfere  with  the  exercise  of  such  a  power.  The 
civil  laws,  however,  of  most  communities  have  variously 
legislated  on  this  subject,  as  also  in  regard  to  landed  or 
immoveable  estates;  some  of  them  taking  away  the  natural 
law  impediment  altogether,  in  regard  to  both  land  and 
goods;  whilst  others  have  wholly  inhibited  aliens  from  en- 
joying either,  and  have  even  forbidden  the  representatives 
of  deceased  persons  from  transmitting  to  alien  claimants 
goods  bequeathed  to  them,  or  which  they  claim  in  virtue  of 
relationship. 

The  laws  as  well  as  usages  of  most  ancient  and  modern 
nations  gave  to  the  national  fisc  all  the  moveables  belong- 
ing to  foreigners  who  died  within  their  dominions,  leaving 
no  native  heirs.  This  barbarous  custom  of  confiscating 
such  property  to  the  state,  in  exclusion  of  the  moral  claim 
of  the  relations  of  such  strangers,  obtained  among  the 
Greeks  and  Romans,  and  was  much  practised  in  modern 
Europe  until  ve^  lately.  So  inveterate  has  been  this 
custom,  particularly  in  France  from  its  earliest   history, 


Lect.  VI.]  ON    NATURAL    RIGHTS.  221 

that  although  it  was  abolished  in  that  country  in  1791,  by 
the  constituent  assembly,  yet  when  the  laws  came  to  be  re- 
vised and  digested  under  the  late  emperor,  the  Droit 
ITJlubaine  was  revived;  and  it  has  been  retained  ever 
since,  with  the  sole  exception  that  this  droit  of  the  crown 
shall  not  be  enforced  wherever  the  subjects  of  France  are 
secured  against  it  by  treaty  in  that  country  to  which  the 
deceased  alien  belonged;  but  in  the  absence  of  treaty  sti- 
pulation, an  alien  is  not  permitted  to  bequeath  property 
situate  in  France,  and  it  vests  in  the  crown  absolutely,  as 
in  ordinary  cases  of  escheat,  caduca,  or  devolution  to  the 
exchequer,  propter  defectum  sungiimis. 

The  legality  of  this  Droit  D'Jlubaine  has  not  been 
denied  by  civilians  and  publicists,  but  it  has  been  very  ge- 
nerally guarded  against  by  reciprocal  treaties;  and,  in  some 
instances,  aliens  have  been  permitted  by  treaty  to  enjoy 
and  transmit  even  lands  to  their  heirs,  whilst,  in  others, 
they  have  this  privilege  granted  to  them  by  the  express 
laws  of  a  country,  which  extend  either  to  aliens  generally, 
under  certain  conditions  however,  or  to  particular  aliens, 
upon  their  special  application  for  the  privilege. 

But  to  explain  the  theory  of  this  doctrine  a  little  fur- 
ther. The  student,  on  reflection,  will  perceive  that  this 
territorial  jurisdiction  in  the  state  or  nation  is  a  very  dis- 
tinct thing  from  a  collection  or  congeries  of  rights  in  so 
many  individuals;  for  if  I  happen  to  occupy  a  tract  of  land 
in  company  with  other  individuals  who  take  tracts  in  a 
like  manner  in  my  neighbourhood,  though  they  be  ever  so 
numerous,  there  would,  in  such  a  case,  be  nothing  to  pre- 
vent my  alienating  my  portion  to  whom  I  pleased.  But 
where  a  number  of  associated  persons,  however  few,  joint- 
ly take  possession  of  vacant  lands,  this  bestows  on  that 
collective  body  a  joint  and  general  property;  and  when 
the  individuals  obtain  separate  portions,  the  collective  body 
still  retains  a  right  in  such  portions,  so  far,  at  least,  as  to 


222  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

regulate  their  transmission;  and,  in  the  absence  of  positive 
law,  the  lands  would  revert  to  the  common  stock  on  the  death 
of  the  owner,  as  some  contend,  but  certainly  on  his  death 
without  heirs  who  are  members  of  the  same  political  com- 
munity. The  collective  body  parted  with  their  property 
to  individuals  oia  the  implied  terms  of  retaining  a  salutary 
control;  and  in  explaining  the  theory  of  sovereignty  and 
individual  property,  all  jurists  have  agreed  that  the  right 
to  exclude  strangers  from  participating  in  the  ownership  of 
lands,  and  even  to  forbid  their  entry  within  the  territory 
for  any  purpose  whatever,  is  a  power  essential  to  the  safe- 
ty and  well-being  of  every  community,  and  must  always 
be  regarded  as  impliedly  reserved  on  the  establishment  of 
every  political  association.  The  abstract  right,  then,  can- 
not be  questioned;  but  the  only  modern  nation  of  which 
we  have  any  knowledge,  that  has  exercised  this  right  to 
an  extent  of  nearly  total  exclusion,  is  China:  her  right  to 
do  so  has  never  given  serious  offence;  it  is  based  on  prin- 
ciples recognized  by  all  nations,  at  all  times,  and  rests  on 
the  theory  we  have  stated,  viz.  the  acquisition  of  her  terri- 
tory by  occupancy  in  gross,  or  some  other  equivalent 
means,  as  conquest,  if  indeed  this  be  a  fully  recognized 
means  of  acquiring  a  plenary  title  to  territory  and  juris- 
diction. You  now  perceive  how  it  is,  that  this  collective 
right  in  the  abstract  person  of  a  community  implies  three 
species  of  jurisdiction;  first,  over  things,  viz.  the  lands 
taken  possession  of;  secondly,  over  the  persons  taking  pos- 
session of  specified  portions  of  land;  and  thirdly,  over 
strangers  whilst  resident  within  the  territorial  limits  of  a 
country.  You  likewise  see  how  jurisdiction,  being  exer- 
cised over  land,  involves  and  influences  incidentally  the 
claim  of  strangers,  even  to  moveables  on  such  land. 


Lect.  VI.]  ON    NATURAL    RIGHTS.  223 

(2.)  Men  are  not       The  jurisdiction  or  sovereignty  of  a 

reduced  to  a  state  of  state  may.  exhibit  itself  in  various  forms, 

nature  by  a  dissolu-  m  ... 

tion  of  the  govern-  ana"    De   exercised  by  various   ministers. 

ment-  One  man  or  many  may  exert  it  over  the 

rest,  and  over  the  territory  which  they  inhabit.     It  seems, 
then,  to  follow  from  this  circumstance,  and  from  the  re- 
marks just  made   on   the  nature  of  jurisdiction,  that  the 
change  or  dissolution  of  a  government  does  not  destroy 
this  sovereignty,  and  thereby  reduce  the  members  of  the 
community  to  a  state  of  nature.     Hence,  though  the  depo- 
sitory of  its  jurisdiction  may  be  changed,  the  power  itself 
resides  in  the  nation  at  large:  the  taking  of  the  sovereignty 
out  of  the  hands  of  any  particular  person  or  persons,  and 
even  an  utter  uncertainty  where  particularly  to  place  it,  can 
have  no  other  effect  than  to  reduce  the  community  to  that 
situation  in  which  it  was  before  the  jurisdiction  was  placed 
in  special  hands.     For  to  the  formation  of  a  government 
two  circumstances  are  requisite;  first,  that  a  body  of  men 
shall   unite  to  form  a  political  society;  and  secondly,  that 
they  shall  have  determined  in  what  form  it  shall  be  ruled: 
hence  the  social  compact,  and  the  constitutional  compact 
are  two  very  distinct  things.      It  appears,  then,  to  be  ob- 
vious that  the  dissolution  of  the  government,  which  is  the 
constitutional  compact,  cannot  reduce   the   members  to  a 
state  of  nature,  but  merely  to  a  state  of  social  and  civil 
union;  in  which  case  the  sovereignty  has   reverted  to  that 
abstract  entity  called  the  state  or  nation.      When  an  event 
of  this  kind  happens  therefore,  as  it  did  in  Rome,  on  the 
expulsion  of  Tarquin;   in  England,  on  the  decapitation  of 
Charles;  in  France,  when  they  executed  their  king,  and 
dissolved  the  government;   and  in  the  United  States,  when 
we  absolved  ourselves   from  all  allegiance  to  the  British 
throne  and  nation,  and  declared  ourselves  independent:  in 
all  these  cases,  I  say,  the  members  of  those  states  were,  in- 
deed, no  longer  subject  to  the  entire  code  regulating  the 


224  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

political  state,  or  form  of  government.  Still  they  were 
not  without  law,  but  remained  under  the  general  obliga- 
tions resulting  from  the  nature,  ends  and  necessities  of 
civil  society;  and  likewise  subject  to  all  the  civil  and  cri- 
minal laws  which  were  not  necessarily  involved  in  the 
downfall  of  the  political  state.  In  every  case  where  such 
a  dissolution  occurs,  the  jurisdiction  over  the  citizens  at 
most  results  back  to  the  source  whence  it  came,  and  the 
collective  body  may  either  adopt  a  new  and  different  con- 
stitution, or  dissolve  even  the  social  compact  also.  In 
such  a  case  only  would  they  be  reduced  to  the  supposed 
primeval  state  of  man,  and  could  then  emerge  from  this 
state  of  nature  only  by  uniting  themselves  to  other  com- 
munities, or  by  forming  themselves  into  a  new  society, 
either  primary  or  civil.  Vou  perceive,  then,  not  only 
that  a  dissolution  of  the  government  leaves  its  members 
in  a  state  of  civil  union,  but  that  all  the  municipal  or  civil 
law  >  of  that  society  remain  in  full  operation,  as  far  as  they 
do  not  relate  to  the  mere  political  state,  which  it  was  the 
design  of  the  revolution  to  change.  And  though  these 
civil  laws  may  have  emanated  from  a  particular  form  of 
government,  and  from  a  policy  somewhat  peculiar  to  such 
a  form,  the  abolition  of  that  form  does  not  per  se  imply  a 
repeal  of  those  laws.  The  ultimate  sovereignty  of  all  so- 
cieties must  reside  in  the  people.  The  constitutional  com- 
pact, or  form  of  government,  originated  from  them,  with 
full  powers  in  certain  functionaries  to  enact,  from  time  to 
time,  such  laws  as  should  be  deemed  expedient.  Now,  if 
the  people  see  fit  to  abolish  the  constitution,  the  laws 
which  have  been  established  by  that  government,  having 
been  virtually  sanctioned  by  the  people,  are  not  annulled 
by  the  mere  abolition  of  the  government  by  which  they 
were  expressly  enacted.  All  laws  therefore,  whether 
they  concern  things  mala  in  se,  or  mala  prohibila,  re- 
main in  full  force,  and    their  violation  would  be  punished 


Lect.  VI.]  ON    NATURAL    RIGHTS.  225 

according  to  such  forms  and  by  such  functionaries  as  re- 
mained, or  by  such  as  should  be  subsequently  provided. 
A  mere  declaration  by  the  people,  that  a  monarchy  or  an 
aristocracy,  for  example,  should  no  longer  exist,  but  that 
all  such  delegated  powers  should  revert  to  the  people, 
would  neither  abolish  existing  civil  laws,  nor  deprive  the 
judiciary,  and  various  other  depositories  of  power,  of  their 
right,  nor  lessen  their  duty,  to  vindicate  the  laws.  If  the 
people  indeed,  by  a  proper  declaration  of  their  wishes, 
were  expressly  to  abolish  the  whole,  there  can  be  no  ques- 
tion but  that  the  whole  political  fabrick  would  be  dis- 
solved, and  every  individual  would  be  placed  in  a  mere 
state  of  nature,  or,  at  most,  of  primary  society. 

Revolutions,  under  any  system  of  melioration,  are  suffi- 
ciently pregnant  with  evils,  without  those  direful  conse- 
quences which  would  necessarily  result  from  the  doctrine 
we  have  impugned.  We  presume,  therefore,  that  publick 
policy,  and  the  implied  wishes  of  the  people  would  sanc- 
tion the  opinion,  that  all  revolutions  which  do  not  express- 
ly declare  by  the  voice  of  the  people,  that  all  powers,  of 
every  kind,  should  revert  to  them,  and  that  all  laws  should 
be  abolished,  could  have  but  the  effect  to  revoke  those  poli- 
tical powers  which  it  appeared  to  have  been  the  manifest 
design  of  the  people  to  abolish,  and  to  leave  all  other 
powers  and  laws  in  operation,  so  far  as  they  can  con- 
sistently operate,  after  the  constitution  or  political  state  is 
annulled.  We  have  dwelt  the  more  on  this  point  because, 
obvious  as  it  certainly  is,  it  has  not  been  always  practically 
regarded,  as  the  history  of  revolutions  abundantly  proves. 
In  revolutionary  times,  when  the  passions  are  excited, 
there  are  men,  and  philosophers  too,  who  boldly  maintain 
that  revolution  implies  a  dissolution  of  all  compacts,  go- 
vernment and  laws;  that  the  people,  in  their  majesty,  are 
once  more  placed  in  a  state  of  natural  equality;  and  that  all 
responsibility,  except  to  God,  or  to  the  people  as  in  a 
29 


235  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

state  of  nature,  has  terminated.  In  a  country  like  ours, 
whose  constitution  and  laws  so  manifestly  originate  from 
the  people,  and  where  the  relations  between  that  people 
and  their  functionaries  are  so  clearly  denned,  we  have  lit- 
tle to  apprehend  from  revolutions,  should  they  occur;  and 
still  less  from  such  dangerous  and  disorganizing  teneis  as 
have  sometimes  disgraced  revolutions  in  other  countries. 
It  was  nevertheless  proper  that  the  salutary  doctrine  of 
this  subject  should  be  clearly  inculcated. 
(3.)  Of  the  effects       I    now  proceed  to   a   consideration  of 

of  civil  union  on  the  the  cnanees   produced   bv  civil   union  on 
risrht  of  Personal  Se- 
curity, certain   rights  of  individuals;    and    first, 

as  concerns  the  right  of  Personal  Security. 

We  may  remember  that,  in  the  state  of  nature,  each  man 
is  the  defender  of  his  own  rights,  and  the  avenger  of  bis 
own  wrongs.  This  freedom  is  matcri  illy  and,  we  think, 
immediately  restricted  by  the  very  act  of  civil  union.  We 
propose  to  bestow  a  few  thoughts  on  the  origin,  foundation 
and  extent  of  this  restriction. 

Individuals  of  a  community  being  precluded  from  the 
exercise  of  their  own  discretion  and  their  own  force  in 
preventing  or  avenging  an  injury,  and  being  obliged  to 
apply  to  the  society,  or  its  constituted  organ,  the  magis- 
trate, to  exercise  its  judgment  and  force,  let  us  see  how 
they  lose  the  first  right,  on  the  one  hand,  and  the  terms  on 
which  they  acquire  the  second,  on  the  other. 

By  the  act  of  civil  union  men  do  not  explicitly  renounce 
and  transfer  their  right  of  defence  or  redress;  for  by  this 
compact  they  only  bind  themselves  to  act  with  the  joint 
force,  and  to  acquiesce  in  the  rules  prescribed  by  the  com- 
mon understanding.  Whatever,  therefore,  may  be  im- 
plied from  this  compact*  there  is  here  no. express  renuiu  i- 
ation  and  transfer.  So,  too,  though  laws  may  directly  take 
away  this  right,  the  inquiry  goes  further,  viz.  whether  it  is 
not  impliedly  restrained  by  the  act  of  civil  union,  without 


Lect.  VI.]  ON    NATURAL    RIGHTS.  227 

the  aid  of  express  legislation;  and  common  opinion  seems 
to  answer  the  question  in  the  affirmative.  The  point 
itself  may  at  first  appear  scarce  worthy  of  examination, 
since  a  necessarily  implied  abandonment  is  quite  equivalent 
to  an  express  one,  and,  even  if  not  so  implied,  express  le- 
gislation would  be  certain  to  follow  very  soon  after  the  so- 
cial compact.  The  question,  however,  has  been  started, 
and  jurists  have  esteemed  it  of  sufficient  value,  not  only  to 
be  argued,  but  to  take  sides  on;  and  it  is  proper  that  stu- 
dents should  know,  not  only  the  settled  laws  and  conceded 
opinions  respecting  all  legal  subjects,  but  the  reasons  on 
which  they  are  based,  the  conflicts  they  have  had  to  encoun- 
ter, and  the  views,  however  eccentric,  which  have  been  en- 
tertained on  these  subjects,  before  the  true  doctrine  in  re- 
gard to  them  came  to  be  fully  settled.  For  this  kind  of  am- 
ple exposition,  I  must  refer  the  student  to  his  library  gene- 
rally. As  to  this  particular  point,  however,  I  shall  very 
briefly  examine  it. 

It  may  be  argued  that,  although  each  individual  is  enti- 
tled to  the  joint  force  of  the  community  for  his  defence, 
it  is  no  reason  why  he  should  not  also  be  permitted  to  ex- 
ercise his  own,  as  far  as  it  goes;  that  there  is  no  direct  in- 
consistency between  the  two;  and  that  his  having  the  one 
right,  does  not  of  itself  take  away  from  him  the  other. 
It  may  be  further  stated,  that  the  question  is  not  solved  by 
reference  to  the  constitutional  compact,  which  follows 
the  first  or  social  compact,  even  if  the  former  should  de- 
clare expressly  on  the  subject;  for  the  inquiry  simply  is, 
whether  the  mere  act  of  civil  union,  (by  which  can  be 
meant  only  the  social  compact)  takes  from  the  members  of 
that  society  all  right  of  self-redress.  And  in  regard  to 
this  second  act,  it  is  either  a  civil  law  or  a  compact  If  it 
be  a  civil  law,  and  is  silent  on  the  subject,  the  question  still 
is  as  to  its  extent  in  impliedly  excluding  private  defence; 
and  if  it  be  a  compact,  the  same  point  occurs,  viz.  whether 


228  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

the  appointment  of  magistrates  necessarily  excludes  all  pri- 
vate defence  and  punishment.  But  hesides  that  the  acqui- 
sition of  a  new  right  to  defence  by  the  community,  does 
not  seem  necessarily  to  destroy  the  old  one,  it  may  further 
be  contended,  that  the  magistrate  is  bat  the  delegate  of  the 
society,  and  that  the  power  committed  to  him  would  be 
only  co-extensive  with  that  which  resides  in  the  collective 
body;  and  that  if  this  latter  power  be  not  inconsistent 
with  the  right  of  private  defence,  the  authority  of  the 
magistrate  cannot  be.  In  reply  to  all  this  it  may  be  ob- 
served, that  there  is  an  obvious  reason  why  the  society 
must  necessarily  interpose  to  prevent  the  use  of  any  pri- 
vate force,  if  that  of  the  community  be  attainable  either 
before  or  after  an  injury.  The  society  has  laid  itself  un- 
der an  obligation,  by  the  very  nature  and  object  of  civil 
union,  to  protect  every  individual  member  of  the  commu- 
nity; and  how  it  is  that  because  the  society  is  obliged  to 
exert  the  common  force  for  the  safety  of  each,  the  indivi- 
dual ability  of  each  to  secure  himself  is  thereby  restrain- 
ed, will  appear  if  we  examine  a  little  closer  into  the  pre- 
cise nature  and  direct  object  of  the  civil  union.  A  com- 
munity is,  indeed,  stronger  than  each  of  its  members;  but 
this  of  itself  is  no  reason  why  each  should  not  resort  to 
his  own  strength;  it  would  be  a  restraint  rather  in  fact 
than  of  right.  If,  therefore,  we  consider  merely  separate- 
ly an  individual's  right,  and  the  community's  obligation, 
we  shall  not  arrive  at  the  true  reason  of  the  necessary 
abridgment  of  private  defence  and  redress,  as  impliedly 
consequent  on  the  very  act  of  civil  union.  We  think, 
then,  that  an  individual  is  understood  to  part  with  his 
right  of  private  defence  &c.  by  the  very  act  of  civil 
union,  not  merely  because  this  act  places  him  under  the 
protection  of  the  society,  but  mainly  because  the  society 
is  also  under  a  like  engagement  to  protect  all  others,  and 
consequently  the  society  cannot   make  any  engagement  to 


Lect.  VI.]  ON    NATURAL    RIGHTS.  22$ 

the  one,  without  reference  to  its  obligations  to  the  other: 
and  this  duty  of  the  state  would  be  necessarily  interfered 
with,  if  the  right  of  defence  and  of  punishment  were  in  any 
degree  participated  in  by  the  injured  individual.  The  indi- 
vidual's own  act,  indeed,  by  which  he  became  a  member  of 
the  community,  made  him  a  party  to  the  state's  engage- 
ment, and  he  thereby  incurs  an  obligation  to  abstain  from 
all  defence,  revenge  or  punishment,  and  to  look  solely  to 
the  state.  It  is  very  true  that  it  is  immaterial  to  an  indi- 
vidual what  engagements  the  state,  apart  from  himself, 
might  have  contracted;  but  if  we  find  in  that  very  com- 
pact which  binds  the  state  to  him,  an  engagement  on  his 
own  part,  in  the  society's  compact  with  others,  it  furnishes 
a  solution  to  the  question;  and  that  this  is  the  case  cannot 
be  questioned.  The  act  of  civil  union  clearly  implies  that 
each  individual  takes  from  the  society,  in  return  for  what 
he  gives  it,  only  what  the  society  has  it  in  its  power  to 
grant.  He  consents  to  take  the  publick  protection  with 
the  limitation  springing  from  the  society's  obligation  to 
others;  and  as  that  obligation  is,  to  guard  the  rights  of  all 
from  the  possibility  of  invasion  by  any,  he,  as  a  member  of 
that  society,  is  a  party  bound,  and  therefore  cannot  be  a 
judge  in  his  own  cause. 

Such  being  the  origin  of  civil  jurisdiction,  and  the 
true  reason  of  vesting  in  the  state  alone  the  right  and  duty 
of  protecting  our  personal  security,  our  next  inquiry  is 
whether,  and  under  what  circumstances,  this  jurisdiction 
ever  ceases,  either  in  factor  in  right,  so  as  to  place  an  indi- 
vidual, pro  hue  vice,  in  a  state  of  nature.  Jurisdiction  is 
said  to  cease  in  fact,  whenever  the  threatened  injury  is  so 
immediate  that  we  cannot  possibly  be  defended  at  all  un- 
less we  resort  to  our  own  private  force;  and  it  is  said  to 
cease  in  right,  when  members  of  the  same,  or  of  different 
societies,  out  of  the  territory  of  any  society,  come  into 
conflict,  to  the  injury  of  the  one  party.     In  this  case  it  is 


230  EFFECTS    OF    GOVERNMENT  [Lect.  VI 

immaterial  how  immediate  or  how  remote;  how  great  or 
how  small,  the  threatened  injury  is,  since  the  parties  are 
now  actually  in  a  stale  of  nature,  amenable  to  no  law  ex- 
cept that  of  God  and  of  conscience.  When  the  parties  re- 
turn to  a  state  of  society,  whether  the  jurisdiction  ceased 
in  fact  only,  or  in  right,  their  responsibility  again  becomes 
the  same  as  if  the  jurisdiction  had  never  ceased.  This 
may  be  stated  as  a  general  rule;  but  perhaps  there  may  be 
exceptions. 

It  is  not,  however,  every  immediate  injury,  or  threat  of 
injury,  which  will  justify  the  right  of  self-defence  in  its 
full  extent,  when  the  individuals  are  living  under  the  same 
jurisdiction:  for  an  injury,  though  immediate  and  certain, 
may  be  too  small  to  justify  the  taking  of  life,  or  even  the 
doing  of  any  grievous  harjtn  to  prevent  it.  Lesser  injuries 
in  society  may  commonly  be  adequately  repaired  after  they 
are  inflicted;  and  when  they  are  of  such  a  character  that 
amends  may  be  made,  the  principle  on  which  jurisdiction  is 
said  to  cease  in  fact,  does  not  obtain.  The  loss  of  life  or  of 
chastity,  for  example,  is  irreparable,  and  if  the  individual, 
when  assailed,  might  not  defend  himself  or  herself  by  all 
necessary  means,  at  the  very  time,  the  party  threatened 
might  never  be  compensated.  In  such  cases,  therefore, 
the  law  imposes  no  restriction  whatever;  the  parties  are 
wholly  in  a  state  of  nature;  and  the  injured  one  is  entitled 
to  ward  off  the  impending  calamity  by  any  means  which 
may  be  called  for  by  the  occasion. 

There  are  also  some  cases  where  injuries  of  a  much 
lower  sort  may  accidentally  be  irreparable;  as,  for  exam- 
ple, where  the  plunderer  of  our  goods  is  unknown,  or 
where  there  is  a  moral  certainty  that  the  society  can  never 
interpose  for  their  restitution.  In  such  cases  there  can  be 
no  doubt  that  great  lengths  may  be  resorted  to  for  their 
preservation,  without  subjecting  us  to  the  imputation  of 
criminally  assuming  the  state's  prerogative,  or  of  violating 


Led.  VI.]  ON    NATURAL    RIGHTS.  231 

the  greater  rights  of  others  in  defending  our  own,  which 
may  he  of  less  consequence. 

It.  would  lead  to  much  detail  and  subtile  inquiry,  were 
we  to  examine  into  the  probable  law  that  might  affect  the 
numerous  cases  where  jurisdiction  may  be  supposed  to 
cease  in  fact;  as,  for  example,  during  civil  war  and  rebel- 
lion; or  where  the  magistrate  cannot  be  found;  or  where 
he  refuses  his  aid;  though  as  to  this  last  it  may  be  observed, 
that  when  this  happens,  it  must  rather  be  supposed  that 
the  society  has  judged  the  application  unfounded,  and 
therefore  that  an  individual  thus  situate  might  be  bound  to 
submit,  whatever  might  be  his  right.  But  there  are  cases, 
no  doubt,  where  an  individual  would  be  justified  in  redres- 
sing his  own  wrongs,  where  a  corrupt  or  ignorant  magis- 
trate manifestly  disregarded  his  unequivocal  right. 

As  respects  the  rights  of  individuals  where  jurisdiction 
ceases  in  right,  cases  ot  great  difficulty  might  easily  be 
mentioned,  each  dependant  on  principles  which,  at  this 
time,  it  would  be  premature  to  discuss.  In  this  case  it  is 
to  be  remarked  that  the  jurisdiction  ceases,  not  from  any 
partial  or  temporary  insufficiency  in>  the  society  or  its  func- 
tionaries to  do  justice,  but  from  its  having  no  jurisdiction 
at  all,  as  in  the  case  of  individuals  from  different  states 
meeting  in  unoccupied  countries,  or  at  sea;  and  therefore 
the  extent  to  which  the  private  right  may  be  exercised, 
and  how  their  rights  are  affected  on  their  return  to  society, 
present  questions  of  some  nicety,  not  easily  definable,  and 
on  which  it  is  not  well  to  speak  positively  in  such  elemen- 
tary prelections  as  the  present.  Thus,  to  give  some  idea 
of  the  nature  of  these  questions,  the  individuals,  placed 
perhaps  on  some  loneiy  island,  out  of  the  jurisdiction  of 
any  country,  may  have  been  subjects  of  the  same  state,  or  of 
different  states;  the  act  committed  may  be  malum  in  se, 
or  malum  prohibitum,  in  one  only,  or  in  both  of  the 
states  to  which  they  belong;  if  illegal  in  both,  the  penal- 


-4- 


232  EFFECTS    OF    GOVERNMENT  |_Lect.  VI. 

ties  may  be  different.  So,  on  the  other  hand,  the  act  done, 
whether  a  wrong  or  a  contract,  may  raise  a  civil  obligation 
in  the  country  of  both  parties,  or  in  that  of  one  of  them 
only,  or  in  that  of  neither,  but  still  in  some  other  country. 
So,  also,  the  contract  may  be  entirely  silent  as  to  the  place  of 
its  contemplated  performance;  or  its  executiun  may  have 
been  designed  in  the  country  where  made,  but  where  there 
was  no  law  to  enforce  it.  In  all  these,  and  numerous  like 
cases,  the  rights  of  the  parties,  whilst  in  a  state  of  nature, 
and  after  their  return  to  society,  might  be  varied  by  those 
different  circumstances,  which,  however,  would  require 
more  detailed  explanation  than  can  now  be  indulged  in. 

In  the  foregoing  observations  I  have  blended  the  consi- 
deration of  defence  and  of  reparation.  But  it  is  proper  to 
state  that  the  right  of  reparation  cannot,  like  the  right  of 
defence,  be  supposed  in  any  case  to  exist  only  for  the  pre- 
sent instant:  it  must  cease  either  indefinitely,  and  of  right, 
or  not  at  all.  When  an  injury  is  coming  on  a  man,  he 
may  be  under  the  necessity  of  defending  himself,  or  of  not 
being  defended  at  all;  but  it  seldom  happens  that  he  is  dri- 
ven to  this  dilemma  in  obtaining  leparation  for  an  injury; 
for  though  defence  might  be  useless,  did  it  not  come  at  the 
moment,  yet  reparation  may  often  prove  as  adequate  at  one 
time  as  at  another.  This  is  true,  in  some  degree,  even  in 
the  case  supposed  by  Grotius,  of  a  man  removing  out  of 
the  territory  of  that  society  whose  members  he  has  injured; 
where,  if  they  do  not  then  stop  him  or  his  goods,  it  may 
be  impossible  for  the  society  afterwards  to  have  him  under 
control,  so  as  to  compel  him  to  render  justice.  In  such  a 
case,  although  the  injured  person  might  be  justified  in 
stopping  the  person  or  goods,  and  perhaps  both,  yet  he 
would  have  no  right  to  appropriate  such  goods,  as  he 
would,  did  the  jurisdiction  cease  in  the  full  extent.  In 
fact  it  only  ceases,  if  at  all,  so  far  as  to  give  him  a  right  to 
stop  the  goods  and  person,  but  not  so  as  to  vest  in  him  the 


Lect.  VI.]  ON    NATURAL    RIGHTS.  233 

property,  in  satisfaction  of  his  claim,  this  being  a  matter 
which  must  be  adjudicated  between  the  parties  by  the  ma- 
gistrate.  This,  we  presume,  is  the  sound  doctrine  where  the 
laws  of  a  society  are  silent  on  the  subject      As  to  an  indi- 
vidual's right  to  reparation,  the  jurisdiction  may  cease  in 
fact  only  so  far  as  to  justify  his  stopping  the  offender  or 
his  goods,  but  not  so  as  to  enable  him  to  satisfy  his  own 
demand  at  once,  since  an  immediate  adjustment  and  satis- 
faction of  the  claim  are  not  material,  and  may  well  be  left 
to  the   future  decision  of  the  constituted   tribunals  of  the 
country.     But  here  a  question  of  some  delicacy  may  arise. 
Suppose  the  laws  of  the  country  have  expressly  legislated 
as  to  the  mode  of  proceeding  where  the  debtor  or  offender 
is  about  to  abscond  with  his  property;  or,  having  abscond- 
ed, his  agent  is  in  the  act  of  removing  it  extra  jurisdic- 
tionem        Suppose  the    right   to  stop  the  goods   is    itself 
regulated  by  law,  but  the  offender  or  his  agent  is  removing 
them  on    Sunday,  when   no  process  can   be  obtained;    or, 
rather,  suppose  the   property  is  in  transitu,  and  there  is 
no  time  left  to  obtain   the  process.      Will   not  the  natural 
law  right  of  stoppage  revive,  and  does  not  the  jurisdiction 
cease  in  fact?     We  presume  that  it  does;  for  the  statutory 
enactment  could  not  have  intended  to  abrogate  the  natural 
right  except  where  an  equivalent  means  is  secured  to  the 
injured   party;    it  only  aimed  at  regulating  the  right  in  all 
cases  where  the  exigency  was  not  so  urgent  as  to  require 
an   instant  interference.       If,  therefore,   an    individual   so 
circumstanced  were  to   seize  the  goods,  and  detain  them 
without   any  legal    process,  such    a    seizure  would   be   no 
trespass,  and  would  be  legally  valid  perhaps  as  to  every 
consequence:   for  suppose  the  goods,  when  safely  deposit- 
ed, should   be  consumed  by  fire,  before  any  legal  process 
could  be  procured;  the  loss,  I  apprehend,  would  fall  whol- 
ly on  the  offender  or  debtor.      But  suppose  another  cre- 
ditor should  ooiain  legal  process,  and  attach  the  goods  in 
30 


234  EFFECTS    OF    GOVERNMENT  [Lect.  VI- 

the  hands  of  that  o editor  who  seized  them  in  the  manner 
we  have  stated:  would  this  wholly  supersede  the  right  of 
such  creditor?  I  should  think  not,  provided  he  also  had 
obtained  legal  process  at  as  early  a  moment  as  was  practi- 
cable after  bis  seizure;  or  if  this  creditor  were  in  any  way 
misled,  or  prevented  from  obtaining  process  by  the  act  of 
the  attaching  creditor.  There  can  he  no  doubt  that  in  the 
supposed  case,  of  a  necessary  seizure  without  process,  the 
party  should  obtain  process  as  soon  as  possible,  if  he  would 
avoid  the  consequences  of  interfering  illegally  with  ano- 
ther's property.  Should  he  neglect  this,  he  might  become 
a  trespasser,  and  might  be  held  liable  to  loss  by  lire,  or 
the  loss  of  profit  on  a  contemplated  sale,  and  perhaps  to 
any  other  supervenient  loss. 

Under  the  strict  notions  of  the  common  law  of  England, 
some  of  the  foregoing  doctrines  would  perhaps  be  regard- 
ed as  wholly  inadmissible;  for  it  must  be  allowed  that  the 
genius  of  that  system  is  too  often  averse  to  the  mitigating 
equities  of  that  secondary  law  of  nature  which  is  the  soul 
and  excellence  of  some  other  codes.  Where  that  com- 
men  law  is  silent,  the  voice  of  simple  justice  is  scarce  al- 
lowed, for  that  reason,  to  be  heard  in  our  courts;  whilst, 
on  the  other  hand,  it  is  often  wholly  suppressed  when  the 
law  has  spoken,  though  in  terms  ever  so  doubtful  or  inade- 
quate. But  under  the  more  liberal  spirit  of  the  general 
municipal  law  of  most  other  countries,  the  views  we  have 
ventured,  to  intimate  might  be  sanctioned.  There  is  a 
plastic  disposition  in  their  laws,  which  accommodates  itself 
to  the  exigency  of  occasions.  The  purer  waters  of  natural 
justice  happily  blend  with  those  which  flow  in  the  more 
formal  and  artificial  streams  of  positive  law.  If  it  be  ad- 
mitted that,  in  a  country  of  laws,  jurisdiction  may  cease 
in  fact,  so  as  to  justify  self-defence,  there  appears  to  be 
no  manifest  reason  why  it  may  not  equally  cease  for  the 
protection   of  property,  or  the  enforcement  of  a  claim,  so 


Lect.  VI.]  ON   NATURAL    RIGHTS.  235 

far  as  to  authorize  the  stoppage  of  the  goods  of  an  offend- 
er whilst  in  transitu,  or  the  debtor  himself,  if  in  \\\<>  act 
of  absconding.  If  positive  law  is  silent,  and  has  not  given 
the  right,  nor  taken  it  away,  the  power  would  seem  to  ex- 
ist under  the  secondary  law  of  nature.  If  this  he  so,  the 
case  would  not  be  varied  where  the  law  has  authorized  the 
arrest  of  such  property.  The  particular  law  must  in- 
deed be  followed,  where  the  premises  on  which  it  can 
operate  obtain;  but  if  the  law  be  not  exclusive,  if  it  has 
not  manifestly  abrogated  the  natural  right,  then  the  credit- 
or or  injured  person  may  resort  to  it  whenever  the  law 
cannot  be  resorted  to,  for  jurisdiction  has  then  cease.1,  in 
fact.  Still,  as  we  have  already  remarked,  the  laws  of 
England  are  probably  too  jealous  to  admit  of  these  liberal 
views  of  general  jurisprudence.  When  those  laws  have 
failed  to  provide  a  remedy,  the  genius  of  that  system 
would  seem  to  sustain  the  presumption  that  none  was  de- 
signed; and  when  a  remedy  has  been  provided,  though  in- 
suflicient  to  meet  all  cases,  the  very  fact  of  legislation  is 
often  regarded  as  necessarily  restricting  persons  exclusive- 
ly to  that  remedy.  It  is  thus  that,  under  the  auspices  of 
this  Procrustean  principle,  many  of  the  genial  equities 
which  find  their  way  into  other  systems,  are  often  wholly 
excluded  from  the  scheme  of  English  jurisprudence. 

(4.)  Of  the  effects       A   right   no   less  valuable  to  man  than 
of  civil  union  on  the   th(J   r;ght  of   personal   security,  is   that  of 
right  to  the  fruits  of 
menial    and    bodily  private  property.      One   of  the   primary 

exertion.  ends  of   society  and  government   is   the 

security  and  vindication  of  this  right.  The  results  ol  our 
mental  and  bodily  toil  constitute  the  meais  of  our  subsis- 
tence, and  most  of  the  comforts  and  luxuries  of  lile.  in- 
security in  such  valuable  possessions  as  these,  would  not 
only  lessen  the  ardour  of  exertion,  but  diminish  the  en- 
joyment of  them  when  obtained.  The  rude  tent  reared 
by  our  hands;  the  implements  made  for  the  procurement 


236  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

and  preparation  of  our  food;    the  weapons  contrived  with 
much  toil  and  skill  for  our  defence;  would  be  of  little  value 
if  our  only  security  rested  on   the  honesty  of  our   fellow 
men,  or  on  our  own  means  of  guarding  them.      If  our  sim- 
ple wants  in  a   state  of  nature  demand  the  recognition  of 
the  right  of  property,  man   in  society  has   much  greater 
need  of  it;   and  it  is  still    more  essential  that  this  right  be 
cautiously  guarded,  and    firmly   secured.      The   institution 
of  property,  in  a  very  limited  degree,  was  no  doubt  ante- 
rior to  that  of  political   government:  but  one  of  the  pecu- 
liar excellencies  of  this  government  is,  that  under  it  men 
are  regularly  disciplined  in  the  acquisition  of  all  the  means 
of  comfortable  maintenance,  and  the  fruits  of  their  mental 
and  bodily  toils  are  secured  to  them.      Man  is  not  only  per- 
mitted, in  civil  society,  to  enjoy  in  peace  and  safety  what 
would    be  sufficient  for  the  supply  of  all  reasonable  wants, 
but  he  may  amass  and  treasure  up  immense  wealth,  or  ex- 
pend it  at  pleasure  by  placing  around  him   all   that  may 
gratify  the  eye  and  ear,  or  minister  to  the  enjoyment  of 
every  sense.      He  may  create  a  fairy  region,  where  every 
breeze   diffuses   a   thousand    perfumes,  and  every  vista  is 
crowded  with  the  beauties  of  nature  and  art;    and  all  this 
may  be  done  in  conscious  and  actual  security,  if  not  against 
the   envy  of   others,  at  least  against  their  violence.      Not 
so  in  a  state  of  mere  primary  society.     There,  indeed,  the 
food  and  miserable  habitation  of  man  may  be  partially  re- 
spected; but  it  is  in  political  society  alone  that  we  find  se- 
cured to  us  all  that  adorns  life,  and  renders  it  truly  desira- 
ble.     In  policed   society,  not  only  the  fruits  of  our   mani- 
pulations and   bodily  exertions  are  respected  as  property, 
but  also  the  productions  of  the  mind.      Were  not  this  the 
case,  the  sciences,  which  minister  so  largely  to  the  arts, 
would  have  remained  comparatively  stationary;    whilst  the 
arts  themselves  must  have  continued  extremely  crude,  and 
industry  have  been  satisfied  with  supplying  little  beyond 


■Lect.  VI.)  ON    NATURAL    BIGHTS.  237 

the  necessary  wants  of  man.  But  how  great  is  that  sti  nu- 
lus  to  exertion,  which  is  given  to  the  pure  intelligence  of 
our  species  by  the  consciousness  that  intellectual  toils  shall 
result  in  positive  and  secured  benefits!  The  mere  pleasure 
of  doing  good  to  others  by  enlarging  the  bounds  of  know- 
ledge, and  the  more  powerful  motive  of  ambition  or  fame, 
could  never  have  advanced  knowledge  to  its  present  won- 
derful extent,  had  not  the  selfish  consideration  of  property 
in  the  fruits  of  mental  exertion,  been  added  to  them. 
Hence  is  it  that,  under  the  most  enlightened  governments, 
literary  property  is  protected  by  express  legislation.  It 
is  respected  and  firmly  guarded  during  the  period  to  which 
it  has  been  deemed  politic  to  limit  its  continuance;  for 
this  species  of  property,  for  reasons  peculiar  to  itself,  is  not 
allowed  to  endure  in  the  author  or  inventor  forever,  as  is 
the  case  with  all  other  property.  Authors  and  inventors 
have  in  their  respective  works  a  right  of  property,  since 
they  can  neither  be  used  nor  published,  nor  in  any  manner 
availed  of  by  others,  without  their  permission.  An  author, 
inventor  or  discoverer  is  under  no  obligation  to  publish  to 
the  world  the  fruit  of  his  intellectual  exertions:  he  has  a 
property  in  his  ideas  and  principles,  or  the  manner  in 
which  they  are  combined  and  applied,  and  any  one  is  ame- 
nable who  invades  such  a  right;  as  much  so  as  if  he  infracts 
the  right  to  external  and  visible  property.  If  an  author  or 
inventor  has  not  published  his  book  or  invention,  but  it  is 
taken  from  him,  and  disclosed  to  the  world,  the  wrongdoer 
would  be  responsible  in  damages,  not  merely  to  the  ex- 
tent of  the  value  of  the  paper  and  ink,  or  of  the  materials  ex- 
pended in  illustrating  an  invention,  but  for  the  value  of  the 
combination  aud  application  of  ideas  and  principles,  as  far 
as  such  value  could  be  estimated.  When,  however,  an  au- 
tluor  or  inventor  has  himself  published  the  results  of  his 
mental  toils,  they  beceme  subject  to  the  common  and  free 
use  of  the  whole  world.      But  as  literary  property,  when 


238  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

kept  to  the  sole  use  of  the  author,  is  often  of  little  value  to 
him,  and  of  still  less  when  published  to  the  world,  where- 
by all  possess  in  it  an  equal  advantage,  it  has  been  the  po- 
licy of  most  governments  to  stimulate  the  ardour  of  lite- 
rary exertion,  by  securing  a  property  to  authors  &c.  for  a 
limited  time  after  they  have  published  their  works,  disco- 
veries and  inventions.  Something  of  this  kind  has  been 
clone  in  most  countries;  but  it  must  be  admitted,  and  with 
regret,  that  governments  have  often  either  gone  beyond, 
or  fallen  short  of  the  true  principle  which  ought  to  sustain 
this  species  of  property.  The  Roman  law,  in  one  of  its 
enactments,  strongly  manifests  its  respect  for  the  labours 
of  the  mind.  If  works  of  genius  or  invention  happened 
to  be  bestowed  on  the  materials  of  another,  as,  for  exam- 
ple, if  a  painter  had  drawn  on  another's  canvass,  that  law 
gave  the  canvass  to  the  painter,  and  not  the  delineation  of 
genius  to  the  owner  of  a  worthless  tablet.  But  some  au- 
thors accuse  the  imperial  law  of  a  great  departure  from  its 
own  principles,  in  giving  to  the  owner  of  parchment  what- 
ever may  have  been  written  on  it  by  another.  It  is  pro- 
bable, however,  that  its  consistency  may  be  vindicated  by 
distinguishing  between  the  mere  mechanical  operation  of 
writing,  and  that  of  originally  composing  on  the  parchment 
of  another.  The  Roman  law  certainly  did  give  to  the 
owner  of  the  materials,  that  which  was  copied  or  mechani- 
cally written  on  them;  but  it  is  not  so  clear  that  an  oration 
or  poem,  composed  on  the  papyrus  &c.  of  another,  belong- 
ed to  the  owner  of  the  materials.  If  this  were  the  case, 
it  would  certainly  be  at  variance  with  the  principle  which 
gave  the  canvass  to  the  painter;  and  that  principle  is  (as 
stated  by  the  Institutes)  that  the  labour,  not  being  a  mere 
manipulation,  hut  one  in  which  the  mind  has  generated 
something,  is  entitled  to  merge  the  claim  of  the  owner  to 
the  inconsiderable  materials  employed  in  calling  it  into 
visible  existence. 


Lect.  VI.]  ON    NATURAL    RIGHTS.  239 

(5.)  Effects  of  ci-       In   a  state  of  P«m?ry  society,  a  good 
vi)  uaion  on  the  right  name  was   no  doubt  of  great   value  to  its 
to  Reputation.  .  .  ... 

possessor,  as  it  was  the  principal   source 

of  his  subsistence,  and  the  only  means  of  maintaining  an 
intercourse  with  his  fellow  men.  None  are  more  tenacious 
of  reputation  than  those  rude  tribes  of  Asia  and  America, 
whose  simple  intercourse  requires  honesty  and  good  faith 
towards  each  other,  without  which  their  little  possessions 
would   be  of  no  value  whatever. 

Civil  societies  have  also  recognized  reputation  as  a  valua- 
ble right,  worthy  of  being  guarded  by  express  laws. 
Hence  the  codes  of  various  nations  contain  enactments  of 
the  severest  kind  against  defamation.  The  Roman  law  at 
one  time  punished  the  libeller  with  death;  and  the  empe- 
ror Valentinian  made  it  a  capital  offence  even  to  omit  des- 
troying libellous  productions,  which  imputed  any  capital 
offence  to  the  person  libelled.  The  emperor  Augustus 
ranked  libelling  with  high  treason,  and  this  was  continued 
by  Tiberius  and  Sylla,  in  the  case  even  of  private  calum- 
ny. But  as  in  the  time  of  the  republic  the  crime  against 
majesty  was  restricted  to  such  acts  only  as  really  affected 
the  sovereignty,  this  severe  extension  of  the  penalties 
against  defamation  was  abandoned  by  Titus  and  Vespasian, 
and  the  punishment  of  libellers  and  slanderers  came  to  be 
regulated  by  defined  laws,  and  more  sound  principles,  as 
we  find  in  the  celebrated  Constitutions  of  Constantine,  in 
the  Theodosian  code,  entitled  De  Fumosis  Libellis.  These 
last  are  the  basis  of  the  common  law  of  England  on  this 
subject,  as  will  be  found  on  examining  the  judicial  decisions 
under  the  head  of  Actions  of  Slander,  reported  by  Lord 
Coke  in  the  fourth  book  of  his  Reports;  as  also  in  the  nu- 
merous Star  Chamber  cases  on  this  law,  which  defined 
most  of  the  principles  to  which  the  English  and  American 
courts  resort  at  the  present  day 


240  EFFECTS    OF    GOVERNMENT  [Lect.  VI". 

That  reputation  should  be  regarded  as  a  natural  and  per- 
fect ri<Wit,  of  great  value,  and  well  entitled  to  the  special 
protection  of  the  laws,  appears  to  have  been  acknowledged 
by  nearly  all  nations,  and  in  every  age.  It  is  said  that  by 
a  law  of  the  Lydians,  slanderers  were  to  be  blooded  in  the 
tongue,  and  the  applauders  and  listeners,  in  the  ear.  So- 
lon, having  regard  to  public  decorum,  and  the  peace  of  fa- 
milies, made  it  penal  to  slander  even  the  dead;  and  the 
polite  Athenians,  who  respected  oratory  perhaps  as  much 
as  any  people  who  ever  existed,  would  not  permit  their 
publick  speakers  to  indulge  in  opprobious  language.  If 
the  anecdote  recorded  by  Plutarch  of  the  sculptor  Phidias, 
be  true,  even  artists  were  to  be  on  their  guard  how  they 
delineated  what  they  conceived  to  be  the  historical  events 
of  their  country:  for  that  sculptor  was  prosecuted  for  a  li- 
bel, for  representing  on  the  shield  of  Minerva,  circumstances 
which  brought  into  doubt  the  early  history  of  Athens,  and 
of  its  great  founder  Theseus. 

We  find,  likewise,  in  the  laws  of  most  countries,  a  dis- 
tinction taken  between  verbal  and  written  slander;  also,  be- 
tween the  slander  of  those  who  are  in  power,  and  of  such 
as  are  mere  private  individuals.  We  find,  too,  that  the  truth 
of  the  matter  imputed  did  not  always  excuse  the  person 
who  uttered  it;  as,  for  example,  where  it  related  to  some 
bodily  or  natural  infirmity,  or  to  some  crime  or  offence 
which  had  either  been  pardoned  or  satisfied;  or,  as  among 
the  Athenians,  where  the  defamation  related  to  a  person's 
trade.  In  some  countries,  also,  the  truth  of  the  accusation 
is  no  ground  for  the  avoidance  of  a  publick  prosecution, 
as  the  principle  which  sustains  such  an  interference  of  the 
publick,  is  that  it  is  conducted,  not  on  behalf  of  the  person 
accused,  but  merely  for  the  prevention  of  such  open  and 
notorious  imputations  as  must  necessarily  tend  to  excite 
the  party  accused  to  revenge,  and  thereby  injure  the  peace 
of  society:  for  as  the  truth  of  the  accusation  would  rather 


Lect.  VI.]  ON    NATURAL    RIGHTS.  241 

aggravate   than   lessen  the  desire  of  revenue,  the  offender, 
has  transgressed  against  the  publick   peace,  though  he  may- 
have  done  no  injustice  to  the  individual  impugned. 

Reputation  may  be  injured  in  three  ways;  first,  by  defa- 
matory words,  usually  called  slander  or  scandal,  which  the 
laws  of  most  societies  regard  as  a  mere  private  injury, 
for  which  the  party  has  redress  by  an  action  for  the  reco- 
very of  damages.  Secondly,  by  libel,  or  defamatory  pub- 
lications in  writing  or  print,  or  by  signs  and  pictures, 
which  is  generally  regarded  as  an  offence  against  the  pub- 
lick,  as  well  as  the  individual,  and  is  redressed  by  a  publick 
prosecution  at  the  suit  of  the  state,  and  a  private  aciion  by 
the  person  libelled.  Thirdly,  by  malicious  prosecution, 
which,  in  like  manner,  may  be  the  subject  of  both  publick 
and  private  redress. 

Thus  are  the  natural  rights  of  man  extended,  denned, 
guarded  and  vindicated  in  civil  society,  in  the  three  points 
we  have  commented  on,  viz.  1.  Exemption  from  per- 
sonal injury;  2.  The  protection  of  private  property;  and 
3.  The  preservation  of  reputation.  We  are  now  to  consi- 
der the  fourth  main  object  of  the  civil  union,  viz.  the  secu- 
rity of  personal  liberty. 

(6.)  Effects  of  civil      The  Personal  Liberty  possessed  by  man 

union  on  the  right  to  in  a  state  of  nature,  or  of  primary  socie- 

er  j.         ^  jg  ajsQ  cons;tjeia|,]y   piodified   by  the 

act  of  political  association.  These  changes  will  sufficient- 
ly appear  when  we  examine  the  distinctions  made  in  the 
books  between  natural,  social,  civil,  political  and  relative 
liberty.  We  propose  to  give  a  short  explanation  of  each 
of  these  terms. 

1.  Natural  Liberty.  This,  as  the  phrase  expresses, 
is  that  which  we  enjoy  in  a  staie  of  nature.  You  ma 
member  that  in  a  former  lecture  we  spoke  also  of  savage 
liberty,  if,  indeed,  it  be  proper  to  use  a  phrase  which  im- 
plies moral  rules,  to  express  a  state  which  sets  them  all  at 
31 


240  EFFECTS   OF    GOVERNMENT  [Lect.  VI, 

defiance.     It  sufficiently  expresses,  however,  the  idea  we 
mean  to  convey,  viz.  the  physical  power  of  doing;  what  we 
like,  regardless  of  all  obligation  whatever.      It  is  perhaps 
unnecessary  to  say  that  there  cannot  be  supposed  to  exist  a 
moral  power  to  acl  in  such  a  way,  though  it  has  been  urged 
by  some,  that  as  God  has  interposed  only  prospective  pun- 
ishment in  most  of  these  cases,  the  agent  is  under  no  actual 
restraint  from  doing  the  evil,  if  he  will  encounter  the  pun- 
ishment.    I  might  involve  you  in  much  intricate  metaphy- 
sicks  by  pursuing  this  point;  but  to   little,  and   perhaps  no 
advantage:    we  may  therefore  dismiss  it  by  merely  obser- 
ving, that  savage  differs  from  natural  liberty  in  this,  that  the 
last  gives  us  the  power  to  do  such  things  only  as  are  consistent 
with  the  law  of  right  reason.     A  man,  consequently,  is  in 
the  complete  possession  of  his  natural  liberty,  who  is  under 
no  otber  restraint  than  what  his  conscience  and  reason  dic- 
tate to  him  as  the   precepts  of  the  law  of  nature.      He  is 
under  no  engagements  to   any  community  or  individuals, 
nor  has  he  connected  himself  with  any  civil  society:  he  is 
therefore  independent  of  all  obligations,  except  those  which 
his  nature,  or  divine  positive  law  has  revealed  to  him.   But 
as  soon  as  man  enters  into  any  association  with  his  fellows, 
he  must  part  with  a  portion  of  his  rights;    for  hardly  any 
combination,  for  any  purpose  whatever,  can   be  conceived, 
which  does  not  require  some  sacrifice  of  individual  will; 
and,  indeed,  this  is  necessarily  tbe  case  in  all  associations, 
unless  it  be  a  rule  of  the  body,  that  nothing  shall  be  trans- 
acted  unless   by  the   unanimous   consent  of  its  members. 
The  end,  therefore,  of  any  union  that  would  probably  take 
place  in  a  state  of  nature,  or  of  primary  society,  cannot  be 
accomplished  without  an  abridgment  of  individual   liberty, 
exactly  as  far  as  may  be  requisite  to  insure  the  end.     Na- 
tural liberty  is  justly  esteemed  the  greatest  blessing  of  hu- 
man  life,  and   the  most  excellent  attribute  of  the  human 
mind.      It  is  consequently   bartered  away  or    restrained 


Lect.  VI.]  ON    NATURAL    RIGHTS.  243 

only  for  the  purpose  of  procuring,  on  the  whole,  some  great- 
er good,  or  rather  for  the  purpose  of  rendering  this  valua- 
ble possession  more  extensively  and  variously  useful;  and 
this  is  *he  only  measure  of  its  protection  and  limitation  un- 
der the  laws  of  political  societies. 

2.  Social  Liberty.  This  is  natural  liberty  limited  and 
regulated  by  the  ends  of  mere  primary  society,  that  is,  as 
it  is  manifested  by  matrimony,  temporary  defence,  hunt- 
ing in  company,  or  any  other  transient  and  partial  object, 
short  of  those  of  civil  society.  We  carry  with  us  into  po- 
litical society  such  a  portion  of  our  social  liberty  as  is  con- 
sistent with  the  more  enlarged  scheme  of  political  associa- 
tion; for  man,  whether  in  a  state  of  nature,  or  of  primary 
or  political  society,  is  si  ill  essentially  the  same  being;  and 
it  is  the  great  design  of  government  and  laws  to  enlarge, 
restrict  and  modify  all  our  natural  and  social  rights  and 
dunes,  so  as  to  produce  the  greatest  share  of  human  happi- 
ness. This  is  effected  mainly  by  clearly  defining  the  na- 
ture and  extent  of  our  liberties,  and  securing  us  in  their  full 
enjoyment. 

3.  Civil  Liberty.  This  is  also  natural  and  social  liber- 
ty, modified  by  law,  as  far  as  the  united  ends  of  the  social 
and  political  union  require.  This  definition  differs  essen- 
tially from  that  given  by  several  writers,  who,  as  they  find 
natural  liberty  defined  to  be  the  power  of  acting  as  we 
please  except  when  restrained  by  the  natural  law,  infer 
that  they  properly  describe  civil  liberty  as  a  like  power  of 
acting  except  when  restrained  by  civil  laws.  It  is,  how- 
ever, extremely  manifest  that  this  cannot  be  correct,  as  it 
leads  directly  to  the  absurd  conclusion,  that  whatever  is  en- 
acted by  a  civil  law,  however  unwise  the  enactment,  can 
be  no  invasion  of  civil  liberty;  a  conclusion  greatly  at  va- 
riance with  all  experience,  and  essentially  erroneous  in 
principle.  The  errour,  we  conceive,  lies  in  referring  the 
consistency  spoken  of,  to  civil  laws,  instead  of  the  civil 


244  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

compact,  or  the  ends  of  all  political   associations.      If  we 
mete  out  civil  liberty  to  men,  and  call  them  freemen   be- 
eause  they  are  only  restrained  by  civil   enactments,  they 
may  have  any  measure  of  civil  liberty,  and  yet  be  the  ve- 
riest slaves  of  the  most  cruel  despotism;  for  though  these 
enactments  should  all  be  written,  certain  and  comprehensi- 
ble laws,  they  may  be  severe,  vexatious  and  arbitrary.    It  is 
obvious,  then, that  this  cannot  be  a  sound  definition  of  civil 
liberty,  and  that  none  can  be  correct  which  does  not  refer 
the  restraint  of  our  natural  and  social  liberties  to  the  ends 
or  design  of  the  social  and  political  compacts.    Another  ob- 
jection to  this  definition  is,  that  as  many  restraints  are  im- 
posed by  the  mere  act  of  civil  union,  without  the  aid  of  any 
civil  law,  there  would,  (according  to  the  terms  of  it)  be  no 
civil  liberty  in  any  polilical  community,  as  there  are  many 
existing  restraints  of  natural   liberty  which  are  altogether 
independent  of  any  positive  enactments.    The  unsoundness 
of  this  definition  is  further  manifested  by  another  singular 
conclusion  which   would   seem  to  result  from   it,  viz.  that 
the  more  civil  laws  are  multiplied,  the  more  is  civil  liberty 
circumscribed;  or,  in  other  words,  the  more  laws,  the  less 
liberty,  because  every  new  law  is  creative  of  some  restraint 
which  did  not  exist  antecedently.      Now,  on  the  contrary, 
it  is  the  pride  of  free  states  to  enact  laws  for  the  preserva- 
tion   of  their   liberties;   and   many  doubts  are  solved,  and 
difficulties  removed  by  express  enactments,  which  are  of- 
ten so  many  guards  against  oppression,  and  enforcements 
of  civil   liberty,  and    by  no  means  general    restraints    by 
which   our  liberty  is   circumscribed.     Who,  for  example, 
could  suppose  for  a  moment  that  the  statutes  of  Magna 
Charla,  17  of  John,  and  9  Henry  3;  or  the  thirty-two  sta- 
tutes confirmatory  of  that'great  charter,  from  the  reign  of 
the  first  Edward  down  to  that  of  Henry  4;   or  the  statutes 
of  Habeas  Corpus,  the  1G  and  31  Charles  1,  &c.  &c.  who, 
we  say,  could  regard  all  these  but  as  so  many  abridgments 


Lect.  VI.]  ON    NATURAL    RIGHTS.  245 

of  civil   liberty,  instead  of  the  sure  and  defined  sources  of 
it?     But  if  we  adopt  the  definition  now  suggested,  none  of 
these  difficulties  arise;   for   by  referring  the  modifications 
of  cm-  natural    liberty  solely  to  the  ends  of  the  political 
,  and   not  to  the  laws  of  the  society,  we  perceive  at 
once  how  it.  is  that  numerous  laws  are  not  only  consistent 
with  civil  liberty,  but,  in   fact,  may  be  the  strongest   bul- 
warks even  of  our  natural  rights,  and  the  best  contrivances 
to  prevent  their  invasion.      The  act  of  civil  union,  there- 
fore, and  the  creation  of  a   magistracy,  with  the  delegation 
to  it  of  legislative  and  executive  powers,   are  not  acts  by 
which  men  yield  up  their  freedom  of  action,  but  a  compo- 
sition between  them  and  their  foes,  (for  such  are  the  unqui- 
et and  unjust,  who  render  government  and  laws  necessary,) 
whereby  they  bargain  away  an  uncertain  and  unproductive 
liberty,  for  a  defined,  regular  and  secured  freedom;  and  it 
is,  at  the  same  time,  a  compact  between  them  and  the  just, 
for  the   prosecution    of  useful  ends.     Any  one,  therefore, 
who  submits  himself  to  the  guidance  of  a  community,  gives 
up  his  licentiousness,  and  not  his  liberty.     In  further  sup- 
port of  this  view  of  the  subject,  we  should  also   bear  in 
mind,  first,  that  a  man  cannot  strictly  be  said  to  yield  up  a 
right,  when  he  obtains  an  equivalent  right   in  exchange, 
which  is  obviously  the  fact  in  this  case,  where  all  the  mem- 
bers of  the  community  come  in  on  the  same  terms:    se- 
condly, that,  in  truth,  the  man  retains  as  a  member  of  the 
society,  the  right  which  as  an  individual  he  surrendered  to 
it:  and   finally,  that  by  the  act  of  civil   union  individuals 
associate  into  one  general  tribunal  for  the  judgment  of  each. 
Hence,  they  cannot  be  said  to  abridge  their  own  liberty  by 
yielding  obedience  to  the  injunctions  of  this  tribunal,  any 
more  than  when  a  man  determines  of  his  own  mind  to  pur- 
sue any  particular  conduct;  for  being  a  party  to  all  the  de- 
cisions and  injunctions  of  the  tribunal  or  society  of  which 
they  are  members,  they  cannot  be  said  to  abridge  their  own 


246  EFFECTS    OF    GOVERNMENT  [Lect.  VI. 

liberty.  Nor  does  it  alter  this  reasoning,  that  the  powers  of 
government  are  sometimes  delegated  to  one,  or  a  few  select- 
ed persons,  since  the  laws  of  nuture  must  forever  recog- 
nize the  individuals  of  the  community  as  the  fountain  of 
all  legitimate  power,  and  the  only  arbiters  in  the  last  resort. 
Under  this  view,  the  rule  for  judging  whether  the  civil 
liberties  of  a  nation,  or  of  any  of  its  members  have  been 
invaded  by  those  entrusted  with  authority,  is  a  plain  and 
brief  one,  although  it  may  sometimes  be  a  rule  of  extreme 
difficulty  and  delicacy  in  its  practical  application.  In  all 
such  cases  the  simple  inqui/y  is,  do  the  objectionable  laws 
&c.  carry  restrictions  further  than  the  ends  of  the  civil 
union  require?  Are  they  demanded  by  a  comprehensive 
view  of  all  the  necessities  of  the  case?  Have  they  secured 
the  civil  liberty  of  the  whole  from  the  attacks  of  individual 
licentiousness?  The  replies  to  such  inquiries  must  deter- 
mine the  justice  of  the  laws  in  question.  We  will  only 
add,  that  when  we  thus  define  civil  liberty  to  be  as  much 
natural  liberty  as  is  consistent  with  the  obligations  of  the 
social  and  civil  union,  there  may  be  a  sort  of  implication, 
that  the  social  or  political  compact  does  in  some  degree 
restrict  our  liberty,  by  an  actual  surrender  of  rights,  with- 
out a  correspondent  equivalent.  But  this,  as  we  have  ex- 
plained it,  is  by  no  means  the  case;  for,  in  the  first  place, 
if  any  thing  were  given  away,  it  was  licentiousness,  not 
liberty:  secondly,  a  right  cannot  be  said  to  be  given  away, 
which  was  compensated  by  another  of  equal  or  greater  va- 
lue: and  thirdly,  nothing  is  given  away  which  is  merely 
transferred  from  a  man  in  his  individual  capacity,  to  him- 
self and  others  as  members  of  a  community;  for  as  every 
other  member  of  the  state  has  done  the  same  thing,  it  is 
nothing  more  than  a  transfer  of  power  from  one  capacity 
to  another  capacity,  with  defined  ends.  On  the  whole, 
therefore,  it  appears  sufficiently  clear  that  society,  govern- 
ment, and  wise  laws  imply  rather  an  augmentation  than 


Lect.  VI.]  ON    NATURAL    RIGHTS.  247 

an  abridgment  of  liberty.  For  when  we  compare  the  state 
of  nature,  or  of  primary  society,  with  that  of  civil  society, 
we  find  the  liberty  of  the  latter  exceeds  that  of  the  former 
in  the  proportion  that  the  secure  enjoyment  of  natural  and 
adventitious  rights  excels  the  irregular  and  uncertain  ac- 
quisitions we  might  make  in  a  state  wherein  caprice  and 
injustice  were  more  frequently  the  arbiters  of  our  rights, 
than  wisdom  and  honesty. 

Let  us  now  proceed  to  the  consideration  of 
4.  Political  Liberty.  This  is  frequently  confounded 
with  civil  liberty;  but  Mr  Christian  has  correctly  defined 
political  liberty  to  be  the  security  with  which,  from  the 
constitution,  form  and  nature  of  the  government,  the  mem- 
bers of  the  community  enjoy  their  civil  liberty.  The 
greater  share  its  people  have  in  the  government,  the  greater 
is  their  political  liberty;  and,  of  course,  the  better  guarded 
will  be  their  civil  liberty. 

Though  civil  liberty  may  be  enjoyed  under  a  monarchy, 
or  even  under  a  despotic  government,  yet,  as  the  subjects 
have  no  security  for  it,  they  have  no  political  liberty.  This 
distinction  between  civil  and  political  liberty  is  compara- 
tively of  modern  origin.  Formerly,  it  was  only  hinted  at 
by  writers  on  natural  and  political  law,  who  appeared  to 
have  some  indistinct  notion  of  the  necessity  of  thus  distin- 
guishing them,  but  did  not  themselves  see  the  distinction 
sufficiently  to  explain  it  with  clearness  to  others.  Ruther- 
forth,  in  speaking  of  civil  liberty,  views  it  as  either  that 
of  the  several  members  of  the  community,  or  that  of  the 
entire  body  politick.  'The  civil  liberty  of  the  individuals/ 
says  he,  'implies  freedom  from  all  except  civil  subjection; 
but  the  civil  liberty  of  the  whole  body  implies  freedom 
from  all  subjection.'  'Civil  subjection,'  continues  he,  'is 
consistent  with  the  civil  liberty  of  the  several  members, 
but  not  with  that  of  the  collective  body;  for  whenever  a 
society  has  proceeded  from  that  perfect  democracy  which 


24S  EFFECTS    OF    GOVERNMENT  [Lect   "VI. 

results  from  the  first  union  of  individuals,  called  primary 
society,  it  will  depend  on  the   nature  of  the   subsequent 
government  whether  the  civil  liberty  of  the  whole  remains 
or  not.      Thus,  an  absolute  monarchy  puts  an  end  to  it;   for 
then  the  collective  body  must  act  by  a  judgment  and  will 
which  are  not  in  its  own  keeping;  and  thus  we  may  under- 
stand why,  on  the  change  of  a   government  from  popular 
to  monarchical,  a  nation  is  said   to  have  lost  its  liberty.'' 
It  is  manifest  from  the  foregoing  observations  of  Ruther- 
forth,  that  he  aims  at  distinguishing  between  civil,  and  what 
has  more  recently  been  called   political  liberty,  as  contra- 
distinguished from  civil,  the  latter  being,  according  to  Dr 
Priestley,  'the  power  which  the  community  leaves  the  citi- 
zen possessed  of  with  respect  to  his  own  conduct,  and  the 
former  the   share  he  may  have  in  directing  the  affairs  of 
the  society.'     'There. may  be  states,'  says  this  writer,    'in 
which  all  the  members  may  have  an  equal  share  in  making 
the  laws,  and  yet  these  may  be  so  severe  as  to  leave  them 
very  little  power  over  their  own  actions.      So,  also,  men 
may  be  left  by  a  mild  code  of  laws  to  think  and  act  very 
freely  for  themselves,  and  yet  be  excluded   from  all  share 
in  the  government.      But  as  the  enjoyment  of  their  privi- 
leges would  in  this  last  case  be  very  precarious,  it  is  obvi- 
ous that  political  liberty  is  the  only  safeguard  of  civil.' 

But  political  liberty  has  itself  been  distinguished  into 
two  kinds,  viz.  as  it  regards  the  state,  on  the  one  hand,  and 
the  members  of  the  community  on  the  other.  The  former 
may  perhaps  be  called  publick  political  liberty,  and  the 
other  private  political  liberty.  The  learned  editor  of  the 
'Commentaries,'  Mr  Tucker,  defines  the  first  to  be  'an  ab- 
solute and  unconstrained  power  of  self  government,  subject 
to  no  control  but  the  laws  of  nature  and  nations.'  Would 
it   not  be    better,   however,  to   denominate  this   indepen- 

*  2  Ruth.  last.  371  to   388. 


Lect.  VI.]  ON    NATURAL    RIGHTS.  249 

dence,  and  to  call  the  other  political  liberty  merely,  and 
without  the  adjunct  word,  'private?'  The  recent  attempt 
of  France  to  interfere  with  the  government  and  internal 
policy  of  Spain,  was  an  invasion  of  her  publick  political 
liberty,  or  independence.  So,  likewise,  in  the  case  of  con- 
quered countries,  this  publick  political  liberty  may  be 
gone,  although  the  civil  liberties  of  the  people  may  re- 
main unimpaired,  and  even  though  the  private  political  li- 
berty continue  nearly  the  same  as  formerly.  The  same 
remarks  may  apply  to  colonies. 

The  second  species  of  political  liberty,  viz.  that  which 
regards  the  members  of  a  community,  has  been  likewise 
considered  in  two  lights;  first,  as  applied  to  the  publick 
functionaries  of  a  state,  in  which  case  it  consists  of  the  free 
exercise,  enjo3anent  and  security  of  their  political  rights 
and  privileges,  according  to  the  constitution  and  laws  of 
the  country;  and  secondly,  as  it  regards  the  private  indi- 
viduals of  the  nation,  in  which  case  it  consists  in  the  secu- 
rity with  which  the  people  enjoy  their  civil  liberties;  and 
that  security  is  in  proportion  to  their  participation  in  the 
affairs  of  government.  These  two  kinds  of  political  liber- 
ty are  treated  by  Montesquieu  in  the  eleventh  and  twelfth 
books  of  'The  Spirit  of  Laws,'  under  the  heads  'of  laws 
which  form  political  liberty  with  regard  to  the  Constitu- 
tion,' and  'of  laws  which  form  political  liberty  as  relative 
to  the  Subject.' 

Mr  Macaulay,  in  his  'Rudiments  of  Political  Science," 
lias  found  fault  with  the  whole  of  the  distinction  between 
civil  and  political  liberty.  That  writer,  and  others  who 
think  the  distinction  unimportant,  and  that  no  other  ex- 
pression need  be  used  than  'civil  liberty,'  seem  to  sustain 
their  opinion  by  views  somewhat  like  the  following.  It  is 
evident,  say  they,  that  the  phrase  'civil  liberty'  necessarily 
implies  something  more  than  mere  freedom  from  restraint, 
and  that  it  also  imports  something  beyond  what  Montes- 
32 


250  ON    NATURAL    RIGHTS.  [Lect.  VI- 

quieu  has  called  'relative  liberty,  or  the  faculty  of  doing 
whatever  we  will,  unless  restrained  by  force  or  law.' 
This  being  the  case,  and  as  it  imports  not  only  the  mere 
actual  state  of  a  citizen  or  subject,  but  also  the  secured 
right  of  directing  his  own  actions,  within  certain  limits; 
that  secured  right  may  be  based  either  on  the  merciful 
edicts  of  an  absolute  monarch,  or  on  the  laws  which  the 
subject  himself  has  a  share  in  making.  If  civil  liberty  be 
consistent  with  an  absolute  government,  the  subject  or  citi- 
zen cannot  with  propriety  be  called  free,  as  there  is  no  se- 
curity by  law  for  its  continuance;  but  it  flows  from  the 
mere  will  of  the  monarch.  In  such  a  case,  the  subject  in- 
deed may  be  actually  and  temporarily  free;  but  he  cannot 
be  said  to  be  civilly  so;  he  does  not  enjoy  civil  liberty. 
Freedom  should  not  be  regarded  merely  as  a  state  or  condi- 
tion in  which  the  people  do  in  fact  direct  their  actions;  but 
as  one  in  which  they  have  guaranteed  to  them  the  perpe- 
tual power  and  right  of  so  doing;  and  this  is  civil  liberty, 
which  is  all  that  is  embraced  under  the  compound  idea  of 
civil  and  political  liberty.  In  this  view  of  the  subject,  no 
such  phrase  as  political  liberty  is  required,  because  civil 
liberty  means  all  that  political  liberty  can  mean,  and  also 
all  that  civil  liberty,  as  distinguished  from  it,  means;  and 
mere  freedom  from  restraint  or  oppression  not  being  liberty 
at  all,  needs  no  name  for  its  designation.  These  views  in 
opposition  to  the  use  of  these  two  phrases  in  the  distinct 
senses  we  have  mentioned,  are  certainly  plausible;  but,  we 
apprehend,  not  entirely  correct.  The  topic,  however,  need 
be  no  further  pressed.  We  think  the  phrases  thus  under- 
stood have  become  too  much  used,  and  are  now  found  too 
convenient,  to  be  abandoned.  They  certainly  can  do  no 
harm,  whilst  they  keep  more  distinctly  separate,  ideas 
which  have  been  often  blended,  and  are  sometimes  consi- 
dered as  identical. 


Lect.  VI.]  ON    NATURAL    RIGHTS.-  251 

Sufficient  has  perhaps  been  said  to  render  obvious  to 
the  student  the  distinctions  between  the  various  kinds  of 
liberty  of  which  we  have  spoken,  and  thus  to  illustrate  the 
different  modifications  of  our  natural  personal  liberty,  con- 
sequent upon  entering  into  the  numerous  relations  to  which 
political  society  gives  rise. 

As  to  the  extent  to  which  personal  liberty  is  alienable, 
we  have  nothing  further  to  add  to  what  was  said  in  a  pre- 
vious lecture,  except  that,  whatever  difficulty  we  may  find 
in  fixing  the  limits  within  which  rulers  and  people,  pressed 
by  necessity  and  tyrannical  power,  may  make  compacts  to 
bind  themselves  and  their  posterity,  there  seems  to  be  no 
principle  in  the  law  of  nature  which  obliges  men,  on  the 
one  hand,  to  sacrifice  privileges  essential  to  the  just  govern- 
ment of  life  and  thought;  or  allows  them,  on  the  other,  to 
exercise  over  the  unfortunate,  the  weak,  or  even  the  base, 
a  power  which  implies  the  right  to  make  them  yet  more 
unhappy  and  wicked. 

We  have  now  brought  to  a  close  what  we  had  to  say  as 
to  the  general  effects  of  society  and  government  on  the 
Natural  Rights  of  Man. 

In  the  ensuing  lecture  we  shall  consider  the  various  defi- 
nitions, the  nature,  properties,  and  different  kinds  of  law. 


LECTURE  VII. 


OP    LAW,   AND    ITS    GENERAL    PROPERTIES. 

(I.)  Introductory  Before  we  examine  the  properties 
remarks.  common  to  all  laws,  or  those  which  dis- 

tinguish them  into  various  classes,  it  is  proper  that  we 
should  endeavour  to  ascertain  the  precise  import  of  seve- 
ral terms  and  expressions  which,  common  as  they  are,  have 
not  been  clearly  defined,  and  of  which  the  definitions  have 
been  extremely  various.  I  allude  to  the  terms  'Law,' 
'The  Law,'  'A  Law,'  'Jurisprudence,'  'Municipal  Law,'  'A 
Municipal  Law,'  'Statute'  &.c.  It  is  also  necessary  to  ad- 
vert to  the  abstract  and  concrete  significations  of  law,  and 
explain  the  confusion  and  errour  of  many  definitions,  con- 
sequent on  not  distinguishing  between  law  as  a  genus,  and 
law  as  a  species. 

(2.)   Of  Law   in       'Law,'  'The  Law,'  (not  meaning  a  par- 

the  Abstract,  and  in  ticular  law)  are  abstract  terms,  and,  as 
the  Concrete.  „  .      . 

collective  or  generical  expressions,  mere- 
ly import  the  totality  of  individual  laws,  contemplated  as 
one  body,  without  reference  either  to  their  origin  or  appli- 
cation. In  this  point  of  view  Law  is  an  ens  rationis 
merely,  there  being  no  actual  entity  correspondent  to  the 
term;  nor  can  any  very  definite  meaning  be  collected 
from  it.  These  terms,  indeed,  are  not  often  used  to  im- 
port the  full  extent  of  their  abstract  signification,  being 
more  frequently  used  in  a  sense  so  far  concrete  as  to  refer 
to  some  particular  system  of  law,  and  yet  in  a  sense  so  far 
abstract  as  to  have  no  direct  reference  to  any  particular 


Lect.  VII.]      OF    LAW,  AND    ITS    GENERAL    PROPERTIES.       253 

law  of  that  system.  If,  for  example,  a  Roman  lawyer 
were  to  say  'law,  or  the  law,  forbids  ingratitude,'  he  would 
use  these  terms  in  a  sense  somewhat  concrete  as  well  as 
abstract,  and  different  from  what  the  same  expression 
would  import,  were  it  used  by  a  British  lawyer.  The 
civilian  would  chiefly  allude  to  the  Roman  code,  which 
punishes  ingratitude  in  various  instances;  and  he  might 
also  allude  remotely  to  the  particular  laws  against  ungrate- 
ful freedmen  and  donees,  both  of  whom  were  punished; 
the  former  by  being  recalled  into  bondage;  the  latter  by 
the  revocation  of  the  things  given.  The  British  lawyer, 
on  the  other  hand,  would  have  a  much  less  definite  ide'a, 
and,  at  most,  would  be  supposed  to  allude  to  the  jus  naturae 
generally,  or  to  that  strong  sense  of  detestation  entertain- 
ed by  mankind  against  ingratitude  of  every  kind;  since  in 
the  English  system  there  are  no  laws  respecting  it  in  any 
case  whatever. 

Law  in  the  concrete  signifies  some  particular  rule  of  ac- 
tion that  must  be  observed  in  order  to  avoid  some  sanction 
of  a  physical,  religious,  moral  or  civil  nature;  or  (as  is 
sometimes  the  case  with  human  laws)  in  order  to  attain 
some  corresponding  good;  leaving  the  party  who  violates 
the  law  as  he  was  before,  except  with  the  loss  of  a  poten- 
tial gain.  Be  the  sanction,  however,  what  it  may,  and 
whether  punitory,  merely  remunerative,  or  both,  it  is  still  a 
law,  as  it  obliges  the  person  to  its  observance,  if  he  would 
avoid  the  punishment  in  the  one  case,  or  obtain  the  advan- 
tage in  the  other.  Law  in  the  concrete  always  supposes 
some  certain  and  known  superior,  competent  to  prescribe 
the  rule,  and  to  enforce  or  execute  the  sanction.  Hence, 
in  this  concrete  sense,  laws,  as  far  as  they  regulate  human 
conduct,  admit  of  a  fourfold  division,  viz.  into  Divine,  Na- 
tural, International,  and  Civil  or  Municipal;  there  being 
no  other  conceivable  moral  laws  than  those  expressly  re- 
vealed to  us  by  God;  or  such  as  are  dictated  to  us  by  the 


254  OF   LAW,  [Lect  VH 

light  of  reason  and  conscience;  or  such  as  are  agreed  upon, 
or  submitted  to,  by  sovereign  nations  for  the  regulation  of 
their  intercourse  with  each  other;  or,  lastly,  those  directed 
by  a  community  to  its  individual  members,  or  to  the  whole 
body  politic  for  its  own  government.  The  three  last,  men- 
tioned classes  of  laws  are  properly  embraced  in  a  book  of 
jurisprudence,  and  form  the  only  subjects  within  the  scope 
of  legal  inquiries. 

In  most  languages  we  find  appropriate  words  to  distin- 
guish the  abstract  from  the  concrete  sense  of  the  word 
law.  Thus,  in  Latin,  we  use  the  term  jus  for  the  former, 
lex  for  the  latter.  Jus  imports  a  system  of  laws,  or  the 
abstract  consideration  of  that  scheme  of  duty  which  arises 
from  many  or  several  rules  or  laws  put  together.  It  signi- 
fies the  genus,  comprehending  all  the  unwritten  as  well  as 
written  law;  and  of  it  lex,  or  a  particular  law,  written  or 
unwritten,  is  a  species.  Thus,  we  say  Jus  gentium,  not 
Leges  gentium;  and  Jura  personarum,  not  Leges  per- 
sonarum. 

Lex,  however,  is  sometimes  used  abstractly,  and  in  lieu 
of  jus,  but  never  when  it  refers  to  a  definite  law.  A  civi- 
lian would  never,  for  example,  say  Jus  JuKum,  Jus  Cor- 
nelium,  Jus  Horatianum,  Jus  Papia-Poppwum,  instead 
of  Lex  Julia  &c;  but  he  would  say  Jus  Honorarium, 
as  this  imports  no  particular  law,  but  a  general  system, 
made  up  of  the  edicts  of  the  Praetors  and  JEdiles.  So,  in 
French,  the  word  droit  expresses  the  abstract,  and  lot  the 
concrete  signification  of  the  word  law.  We  do  not  say 
Loi,  but  Droit  de  la  Nature.  The  Spaniards  have  also 
ley  and  dcreeho  as  correspondent  terms;  the  Germans  use 
gesetz  for  the  concrete,  and  recht  for  the  abstract;  and  the 
Italians  use  legge  and  diritlo.  The  English,  perhaps, 
has  no  words  expressive  of  these  distinct  significations. 
The  word  law  is  indifferently  used,  and  the  two  meanings 
can  be  expressed  only   by  the  use  of   additional   words. 


Lect.  VII.]  AXD    ITS    GENERAL    PROPERTIES.  255 

The  old  English,  indeed,  had  the  word  right  to  express 
the  abstract  sense;  hence  the  term  Folk-right,  meaning 
the  people's-Iaw;  but  this  use  of  the  word  is  obsolete,  un- 
less, perhaps,  the  expressions  'Rights  of  persons,'  and 
'Rights  of  things,'  should  be  received  as  importing  the 
same  thing  as  laws  of  persons  &c.  using  the  words  rights 
and  laics  abstractly,  and  as  strictly  synonymous  with  jura 
personarum  &c.  Some,  however,  may  object  to  the  use 
of  the  words  jura  and  rights  as  importing  laws  in  the 
abstract,  and  may  contend  that  the  word  'rights"  in  those 
several  expressions  should  not  be  rendered  by  the  word 
'laws,' but  by  the  word  'rights*  in  its  ordinary  acceptation; 
meaning  thereby  certain  qualities  vested  in  us,  whereby 
we  justly  claim  the  power  of  doing  certain  actions,  and  of 
possessing  certain  things,  and  not  as  synonymous  with  the 
word  'laws.'  If  that  rendering  be  the  more  correct,  we 
have  then  no  word  in  our  language  expressive  of  the  dis- 
tinction so  often  alluded  to. 
(3.)  Various  Defi-       Logicians  have  made  many  nice  dis- 

nitions  of  Law,  and  tinctions  as  to  the  nature  and  several 
the  reason   of    their  ,  .     ,  ~     .    ~    ...  m,         ,,  •  ir 

general       incorrect-  kinds    of    definitions.       The    thing    itself 

ness.  may  be  defined,  or  only  the  name.    The 

definition  may  be  strictly  logical,  or  without  regard  to 
the  rules  of  that  art:  hence  the  schoolmen  have  divided 
definitions  into  four  kinds,  Nominal,  Real,  Accurate  and 
Inaccurate,  the  last  of  which  takes  the  name  of  Description. 
Every  species  of  definition,  however,  should  aim  at  distin- 
guishing the  matter  defined  from  all  other  things.  Neither 
the  thing  defined,  nor  synonymous  names,  should  form  a 
part  of  the  definition;  and  it  should  agree  with  every  spe- 
cies comprehended  by  the  genus,  and  not  merely  with  a 
part  of  the  genus,  and  «a  part  of  the  species.  So,  in  de- 
fining things  or  words,  either  the  genus  or  the  species 
should  be  comprehended,  nor  should  it  be  doubtful  to  which 
the  definition  applies.     The  inaccuracy  and  uncertainty  of 


g5G  OF   LAW,  [Lect.  VII. 

many  definitions  that  hnve  been  given  of  the  term  Law, 
arise  either  from  defining  the  species  where  the  genus  was 
intended,  or  e  converso.  The  difficulty  and  danger  of  defi- 
nitions have  been  often  adverted  to  by  writers;  and  their 
great  utility,  when  correctly  framed,  has  also  been  equally 
commended.  Swinburne,  a  learned  and  accurate  legal  au- 
thor of  Elizabeth's  time,  in  the  early  part  of  his  great 
work,  remarks  that  'definitions  are  said  to  be  dangerous  in 
law;  the  cause  whereof  is  the  multitude  of  different  cases, 
the  penury  of  apt  words,  the  weakness  of  our  understand- 
ing, and  the  contrariety  or  opinions;  for  among  such  vari- 
ety of  things,  either  we  cannot  discern  the  true  essence 
thereof,  or  we  do  not  aptly  deliver  what  we  conceive;  or 
else,  these  perils  being  past,  at  least  in  our  own  opinions, 
yet  are  we  still  subject  to  the  rigorous  examination  of  all 
sorts  of  men,  and  must  abide  the  verdict  and  sentence  of 
the  deepest  judgments.  And  it  is  rare  if  one  man  at  least, 
among  so  many,  do  not  espy  some  defect  or  excess  in  the 
definition,  whereby  the  same  may  be  subverted.  Which 
thing  if  it  come  to  pass,  then  the  definition  being  over- 
thrown, all  the  arguments  drawn  from  thence,  and  whatever 
else  dependeth  thereupon,  is  in  peril  to  be  overturned.  No 
marvel,  then,  if  definitions  be  reported  to  be  dangerous. 
But  if,  contrary  to  the  common  course,  the  definition  be  so 
just  that  it  cannot  be  fairly  reproved,  then  it  is  profitable, 
and  so  necessary  that  from  thence,  as  from  the  root  and 
fountain,  every  discourse  ought  to  take  this  beginning;  the 
rather,  for  that  thereby  (amongst  many  other  benefits  is- 
suing from  definitions)  the  whole  nature  of  the  thing  de- 
fined is  plainly  declared,  and  that  in  few  words.'*  Had 
legal  authors  generally  been  duly  impressed  with  the  views 
of  this  writer  as  to  the  caution  with  which  they  should 
frame  their  definitions,  there  would  have  been  less  occasion 

"'  Swinburne  on  Testaments  and  Last  Wills,  part  1,  sec.  3. 


Lect.  VII.]  AND  1TS    GENERAL    PROPERTIES.  257 

than  now  exists,  to  examine  them  critically.  The  fol- 
lowing are  the  most  celebrated  definitions  of  law  in  the 
abstract  and  concrete,  that  have  been  given  from  the  ear- 
liest times  to  the  present  day.  They  are  stated  some- 
what in  chronological  order,  and  the  defects  of  some  of 
them  will  be  briefly  noticed. 

1.  'The  design  and  object  of  laws  is  to  ascertain  what  is 
just,  honourable  and  expedient;  and  when  that  is  discov- 
ered, it  is  proclaimed  as  a  general  ordinance,  equal  and  im- 
partial to  all.  This  is  the  origin  of  law,  which,  for  various 
reasons,  all  are  under  an  obligation  to  obey;  but  especially 
because  all  law  is  the  invention  of  Heaven,  the  resolution 
of  wise  men,  the  correction  of  every  offence,  and  the  gen- 
eral compact  of  the  state;  to  live  in  conformity  with  which 
is  the  duty  of  every  individual  in  society.'  Demos- 
thenes, Orat.  1.  cont.  Aristogit. 

2.  'A  law  is  a  form  of  words  prescribed  by  the  general 
consent  of  the  City,  directing  every  member  thereof  how 
to  act  on  all  occasions. '  Aristotle,  Rhet.  ad  Alex.  cap.  1. 

3.  'Positive  law  is  in  all  respects  a  contract.  The  par- 
ties contracting  are  the  governors  and  the  governed.  On 
the  side  of  the  public  it  is  stipulated  by  the  laws,  that  a 
general  security  shall  be  maintained;  that  every  person  who 
is  a  party  to  the  contract,  shall  have  his  just  rights  protect- 
ed; and  shall  not  be  molested  by  any  act  of  violence  to  his 
person  or  property;  or,  if  molested,  upon  a  proper  com- 
.plaint,  he  shall  find  the  laws  ready  to  avenge  his  quarrels, 
and  that  they  can  punish  as  well  as  prescribe. '     Aristotle. 

4.  'Law  is  the  distinction  betwixt  justice  and  injustice.' 
'Est  lex  justorum  injustorumque  distinction  'Lex  est 
summa  ratio  insita  a  naturd,  quse  jubet  ea  quse  faci- 
enda  sunt,  prohibet  que  coniraria.'>     Cicero,  de  Leg.  c.  2. 

5.  'Jurisprudence  is  the  knowledge  of  things  divine  and 
human;  the  science  of  what  is  just  and  unjust.'  'Juris* 
prudentia  est  divinarum  it  I  que   hmnanarum  return  no- 

33 


258  OF   LAW,  iLectVII. 

titia,justi  atque  injusti  sciential     Justinian,  Inst.  lib. 
1.  tit  1.  sec.  1. 

6.  'Jus  civile  est  quod  quisque  sibi  populus  constituit. 
Justinian,  Inst.  lib.  1.  tit.  ii.  sec.  1. 

7.  'Law  is  an  art  of  well  ordering  civil  society.'  Sir 
Henry  Finch. 

8.  'Law  is  a  just  statute,  ordaining  what  is  right  and 
honest,  and  prohibiting  the  contrary.'  lLex  specialiter 
signijicat  sanctionem  justam,  jubentem  honesta,  et  pro- 
hibentem  contraria.'     Bracton,  lib.  1.  cap.  3. 

9.  'Law  is  a  rule  of  moral  conduct,  obliging  men  to  do 
what  is  right. '  'Regula  actuum  moralium,  obligans  ad 
id  quod  rectum  est.'     Grotius,  lib.  1.  cap.  1.  sec.  ix. 

10.  'In  general,  a  law  may  conveniently  enough  be  de- 
fined a  decree  by  which  a  sovereign  obligeth  his  subjects 
to  conform  their  actions  to  what  he  prescribes.'  lIn  gen- 
ere  autem  lex  commodissime  videtur  definiri  per  decre- 
tum,  quo  superior  sibi  subjectum  obligat,  ut  ad  istius 
prsescriptum  actiones  quas  componat.'  Puffendorf, 
lib.  1.  cap.  1.  sec.  4. 

11.  lLaw  is  a  rule  of  action  imposed  on  a  subject  by  one 
who  has  power  over  him.'     Bishop  Saunderson. 

12.  'Laio  is  a  rule  of  acting  or  not  acting.'  Daws' 
Orig.  Laws,  4.  14. 

13.  'Law  is  that  which  assigns  unto  each  thing  the  kind, 
moderates  the  force,  and  appoints  the  form  and  measure 
of  working.     Hooker,  Ecclesi.  Poli.  2. 

14  './?  law  is  the  command  of  him  or  them  that  have 
the  sovereign  power,  given  to  those  that  be  his  or  their 
subjects,  declaring  publicly  and  plainly  what  any  of  them 
may  do,  and  what  they  must  forbear  to  do,'  Horbes'  Di- 
alogue between  a  Lawyer  and  a  Philosopher.  Works, 
598. 

15.  'Laws,  in  their  most  general  signification,  are  the 
necessary  relations  resulting  from  the  nature  of  things.' 
Montesquieu,  vol.  1.  16. 


Lect.  VII.]  AND    jts    GENERAL    PROPERTIES.  259 

16.  'Law  is  a  rule  prescribed  by  the  sovereign  of  a  so- 
ciety to  his  subjects,  either  in  order  to  lay  an  obligation  of 
doing  or  omitting  certain  things,  under  the  commination 
of  punishment;  or  to  leave  them  at  liberty  to  act  or  not  in 
other  things,  just  as  they  think  proper,  and  to  secure  to 
them,  in  this  respect,  the  full  enjoyment  of  their  rights.' 
Burlamaqui,  Inst.  Nat.  Law,  chap.  viii. 

17.  'Law  is  the  will  of  a  superior,  sufficiently  notified 
in  some  way  or  other,  by  which  will  he  directs  either  all 
the  actions  in  general  of  those  who  depend  on  him,  or  at 
least  of  all  those  of  a  certain  kind,  so  that,  in  regard  to 
such  actions,  he  either  imposes  on  them  a  necessity  of  doing 
or  not  doing  certain  things,  or  leaves  them  at  liberty  to  act 
or  not  act,  as  they  shall  judge  proper.'  Barbeyrac,  Note 
5  on  Grotius,  lib.  1.  cap.  1.  sec.  ix. 

18.  'Law  in  the  genus  is  that  faculty  whereby  some 
lawful  superior  prescribes  rules  of  action  which  those  in 
subjection  are  obliged  to  perform  under  certain  penalties, 
express  or  implied.     Dagge,  Criminal  Law,  vol.  1,  2,  vol. 

2,95.  V  A" 

19.  'Law,  in  its  most  general  and  comprehensive  sense, 
signifies  a  rule  of  action,  and  is  applied  indiscriminately 
to  all  kinds  of  action,  whether  animate  or  inanimate,  ra- 
tional or  irrational :  and  it  is  that  rule  of  action  prescribed 
by  some  superior,  and  which  the  inferior  is  bound  to  obey.' 
Blackstone's  Comm.  1  vol.  43. 

20.  'Civil  or  municipal  law  is  a  rule  of  civil  conduct  pre- 
scribed by  the  supreme  power  in  a  state,  commanding  what 
is  right,  and  prohibiting  what  is  wrong.9  Blackstone, 
Comm.  1  vol.  44.   m 

(4.)  Observations  Without  intending  to  indulge  in  hyper- 
on  the  foregoing  de-  critical  remarks  on  the  foregoing  defini- 
finitions.  tionSj  it  may  be  justly  said  that  they  are 

generally  far  from  accurate,  and  that  most  of  them  are  ob- 
noxious to  the  charge  of  not  properly  distinguishing  Law 


260  °P  LAW,  [Lect.  VII. 

from  a  positive  law.  Several  of  them  are  rather  descrip- 
tions than  definitions;  others  are  neither  the  one  nor  the 
other;  and  many  of  them  confound  different  species  of  law 
with  some  other  species,  or  with  the  genus  law.  A  few  ob- 
servations on  each  of  them,  in  the  order  in  which  they  are 
enumerated,  will  perhaps  justify  this  comprehensive  cen- 
sure. 

No.  1.  The  beauty  of  this  description  of  law  by  Demos- 
thenes has  been  often  a  theme  of  admiration;  and  Mr 
Christian  regards  it  'as  the  most  perfect  and  satisfactory 
description  of  law  than  can  be  conceived.'*  We  concurjn 
the  opinion  respecting  its  beauty,  but  are  inclined  to  think 
the  praise  overcharged,  which  considers  it  as 'perfect'  and  en- 
tirely 'satisfactory.'  If  law  be  in  part  the  invention  and  gift 
of  Heaven;  in  part  the  precepts  of  wise  men  for  the  cor- 
rection of  offences;  and  lastly,  if  it  be  also  in  part  a  gene- 
ral covenant  of  the  citizens,  by  which  their  conduct  is  to 
be  regulated;  and  if,  from  the  excellence  of  its  threefold 
origin,  it  is  clothed  with  authority;  the  description  is  not 
very  explicit  as  to  the  grounds  of  that  authority,  nor  is 
any  thing  said  as  to  its  sanctions.  As  far  as  law  proceeds 
from  Heaven,  it  is  authoritative,  and  no  sanction  need  be 
adverted  to;  but  the  wisest  precepts  of  the  wisest  and  most 
virtuous  of  mankind  are  not  necessarily  authoritative  or 
obligatory ;  and  if  they  were,  the  right  or  power  to  en- 
force them  by  sanctions  should  appear.  Again,  if  obliga- 
tion be  consequent  on  .the  precepts  of  wisdom,  offences 
would  not  be  the  only  objects  of  these  precepts:  and  last- 
ly, if  laws  also  proceed  from  a  general  compact  of  the  cit- 
izens, how  are  those  citizens  bound  by  them  who  have  not 
consented  to  their  enactment?  If  they  all  consent,  it  may  be 
a  law  and  a  compact  both;  and  it  would  be  law  as  to  those 
also  who  did  not  consent,  had  the  description  provided  any 

e  1  Blackstone's  Commentaries  44.  Note. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  261 

other  source  of  civil  or  positive  laws  than  general  compact. 
In  this  respect  the  description  is  also  unsatisfactory,  since 
valid  laws  may  be  made  by  lawful  human  superiors  or 
sovereigns,  binding  even  on  those  who  dissent;  and  this  is 
the  case  even  in  a  democracy,  where  the  majority  of  the 
people  is  the  superior  or  sovereign  over  all  others  within 
the  community.  Hence,  legitimate  laws  would  seem  to 
arise  only  from  God;  from  the  consent  of  all  who  are 
bound  by  them;  and  hstly,  from  the  authority  of  some 
lawful  earthly  superior,  though  against  the  consent  of  those 
affected  by  the  law.  But  perhaps  it  may  be  said  that  'the 
general  compact  of  the  state'  mentioned  in  the  description, 
refers  to  the  first  political  union,  and  not  to  the  making  of 
the  laws  themselves  in  virtue  of  the  power  conferred  by 
that  compact;  and  that  therefore  the  laws  are  binding  on 
the  minority  because  the  compact  itself  must  be  presumed 
to  have  settled  the  principle,  that  all  laws  constituted  by 
the  majority  shall  be  equally  obligatory  on  all.  This  may 
possibly  have  been  the  meaning  of  the  orator,  but  it  is  not 
so  expressed.  If  such  be  the  meaning,  it  redeems  his  des- 
cription from  the  imperfection  last  attributed  to  it. 

No.  2.  This  definition  by  Aristotle  is  liable,  we  think, 
to  two  objections.  First;  it  confounds  the  statute,  that  is, 
the  form  of  ivords,  with  the  precept  or  law  itself.  This, 
indeed,  is  a  very  common  errour.  The  statute  is  the  mere 
physical  entity,  and  may  contain  within  its  limits  a  great 
variety  of  precepts  or  laws.  A  law  is  a  single  and  dis- 
tinct precept;  it  is  the  intellectual  entity  evidenced  by 
the  statute.  Should  a  statute  comprehend  many  precepts, 
as  is  generally  the  case,  it  must  be  regarded  as  containing 
so  many  distinct  laws,  exhibited  by  a  form  of  words  set 
forth  in  one  instrument;  so  that  every  distinct  order,  even 
though  in  the  same  section  of  a  statute,  is  as  much  a 
law  as  if  declared  by  a  distinct  statute.  The  popular 
notion  of    a  law  comprehends,    indeed,   all   that   happens 


262  op  LAW,  [Lect.  VII. 

to  be  embraced  by  any  ordinance  of  the  lawgiver;  but  the 
just  idea  is  that  just  stated;  and,  as  respects  the  form  of 
words,  it  would  be  better,  perhaps,  were  all  the  distinct 
precepts  or  orders  of  a  statute  evidenced  by  at  least  as  many 
distinct  sections.  Were  this  more  frequently  done,  there 
would  be  less  cause  for  judicial  interpretation  than  exists 
at  present. 

Secondly.  Aristotle  intended  this  as  a  definition  of  civil 
law  generally,  and  not  of  a  civil  law.  This  appears  by  the 
words  'on  all  occasions:'  hence  it  would  have  been  better 
had  the  word  'civil'  or  'municipal'  been  used,  instead  of 
the  particle  a.  The  words  'general  consent'  likewise,  (un- 
less they  refer  to  the  original  power  conferred  on  the  com- 
munity to  make  laws,  and  thereby  to  bind  the  minority,) 
are  at  variance  with  the  rest  of  the  definition,  which 
speaks  of  the  laws  themselves  as  prescribed  by  that  gene- 
ral consent.  This  imparts  to  the  definition  the  same  ob- 
scurity I  alluded  to  when  remarking  on  the  description  of 
law  by  Demosthenes. 

No.  3.  In  this  description  of  positive  or  civil  law,  Aris- 
totle has  been  more  happy.  It  justly  refers  the  origin  of 
all  such  laws  to  the  consent,  express  or  implied,  of  the  go- 
verned; and  describes,  in  a  general  way,  the  objects  of 
civil  laws,  and  the  power  of  the  organ  by  which  they  are 
constituted,  to  enforce  their  observance. 

No.  4.  The  principal  objection  to  these  definitions  by 
Cicero  is,  that,  while  they  aim  at  defining  law  as  a  genus, 
they  define  merely  the  law  of  nature,  which  is  one  species 
only. 

No.  5.  This  is  not  a  definition  of  law  either  as  a  genus, 
or  a  species;  either  in  the  abstract  or  the  concrete.  The 
term  'Jurisprudence'  is  indeed  itself  altogether  an  ab- 
stract one.  If  it  means  the  totality  of  laws,  having  no 
regard  to  their  origin,  nature  and  application,  or  if  it  signi- 
fies the  science  of  universal  law,  it  has  in  either  case  no- 


Lect.  VIL]  AND    ITS    GENERAL    PROPERTIES.  263 

thing  in  common  with  a  law.  The  science  which  ex- 
plains law,  or  the  volume  or  code  which  contains  laws, 
has  in  it  no  one  property  of  law.  Justinian  evidently 
meant  nothing  more  than  that  the  science  of  jurisprudence 
relates  to  the  conduct  of  all  intelligent  beings,  and  that  it 
is  partly  of  divine,  and  partly  of  human  ordinance.  But 
when  he  subsequently  speaks  of  it  as  'the  science  of  what 
is  just  and  unjust,'  he  departs  somewhat  from  the  first 
clause  of  his  description,  and  restricts  both  divine  and  hu- 
man laws  within  the  pale  of  mere  morals,  or  of  the  jus 
naturoe;  whereas  jurisprudence  has  a  more  extensive  im- 
port, since  the  laws  both  of  God  and  man  relate  to  actions 
neither  right  nor  wrong  under  the  law  of  nature;  as,  for 
example,  the  whole  of  what  is  strictly  called  divine  positive 
law,  and  such  human  laws  as  are  founded  on  civil  policy 
only;  those,  for  example,  which  inhibit  the  killing  of 
game;  the  exportation  of  wool;  inhumation  in  cotton  vest- 
ments &c.* 

No.  6.  This  definition  of  civil  law,  from  the  Institutes, 
is  still  more  defective,  as  it  is  neither  a  definition  nor  a 
description.  Justinian  does  not  define  law,  either  in  the 
abstract  or  the  concrete;  but,  taking  it  for  granted  that  the 
import  of  the  word  is  known,  he  merely  says,  'That  law 
which  a  people  enacts  for  its  own  government,  is  called  the 
civil  law;'  but  no  explanation  is  given  of  the  import  of  the 
word  Haw,'  and  not  a  very  satisfactory  one  of  the  word 
'civil.' 

No.  7.  Sir  Henry  Finch  evidently  designed  to  explain 
the  meaning  of  the  word  law  as  a  genus;  but  it  is  rather  a 
description  of  the  object  of  legislation,  or  of  the  duty  of 
a  lawgiver,  than  a  definition  of  law  itself.  There  appears, 
moreover,  to  be  no  propriety  in  defining  a  law  or  laws  to 
be  an  art. 

•  Vide  remarks  on  20th  definition. 


264  OF   lAW>  [Lect.  VII. 

No.  8.  Bracton's  definition  was  intended  to  apply  only 
to  a  species,  viz.  civil  law;  but  is  not  a  just  one  even  of 
that;  since  civil  law  does  not  restrict  its  commands  and 
inhibitions  to  things  merely  honest  and  just,  or  the  contra- 
ry. The  word  sanclio,  which  is  generally  rendered  by 
the  word  statute,  has  a  more  comprehensive  signification, 
and  means  order  or  command;  so  that  this  word  statute  is 
not  obnoxious  to  the  remarks  made  in  considering  the  se- 
cond definition. 

No.  9.  This  cannot  be  regarded  as  any  thing  more  than 
a  definition  of  the  law  of  nature,  and  not  a  very  compre- 
hensive one  even  of  that  species  of  law.  I  shall  only  observe 
here,  that  Pufiendorfs  leading  objection  to  it  appears  to 
me  untenable.  He  reproves  it  because  Grotius  thereby 
makes  right  antecedent  to  law,  whereas  Puffendorf  him- 
self considers  all  such  right  to  be  created  by  the  law.  I 
shall  have  occasion  to  consider  this  doctrine  in  the  ensuing 
lecture.* 

No.  10.  The  objection  to  this  definition  by  Puffendorf 
is  twofold;  first;  law  in  the  general  is  not  a  decree  or  sta- 
tute, for  the  reasons  already  suggested;  secondly;  if  law 
in  the  concrete,  or  as  a  species,  be  a  rule  prescribed  by 
some  superior,  the  word  lawful  should  be  added;  for  no 
kind  of  superiority  per  se  confers  a  power  on  any  one  to 
oblige  others  to  obedience. 

No.  11.  The  only  material  objection  to  this  definition 
is,  that  if  it  be  a  definition  of  law  in  the  abstract,  it  is  not 
sufficiently  comprehensive.  The  word  'subject'  restricts 
it  to  civil  laws  only. 

No.  12.  Law  in  the  abstract  consists,  no  doubt,  of  rules 
of  not  acting,  as  well  as  of  acting;  since  there  are  actions 
which  may  be  forbidden,  and  others  which  may  be  com- 
manded.     Still,  as  verbal  accuracy  is  essential  to  exact  li- 

*  Vide  post,  306  to  311. 


Led.  VII. J  AND    ITS    GENERAL    PROPERTIES.  26  5 

initation  of  ideas,  we  cannot  define  law  to  be  a  rule  of  act- 
ing or  not  [acting;  for,  as  the  learned  Hooker  justly  ob- 
serves, 'We  must  not  suppose  that  there  needeth  one  rule 
to  know  the  good,  and  another  to  know  the  evil  by:  for  he 
who  knoweth  what  is  straight,  doth  even  thereby  discern 
what  is  crooked.'* 

No.  13.  This  definition  of  law  in  the  abstract  is  very 
metaphysical  and  obscure.  By  the  term  'working'  is 
meant,  we  presume,  acting.  To  every  action  belong  a 
nature  or  'kind,'  a  power  or  'force,'  a  mode  or  'form'  of 
doing,  and  a  quantity  or  'measure'  of  doing;  and  accor- 
ding to  this  definition  by  Hooker,  it  is  the  province  of  law 
to  assign  to  every  thing  in  nature  these  limitations  of  their 
actions.  But  by  whom,  and  for  what  object  these  limita- 
tions are  assigned,  or  by  what  power  they  are  enforced,  and 
what  are  the  general  consequences  of  a  departure  from  them, 
we  are  not  informed.  Hence,  as  a  definition  or  descrip- 
tion of  law,  it  is  far  from  being  satisfactory. 

No.  14.  This  is  at  most  a  definition  of  a  civil  law  only, 
and  not  of  the  term  Law.  As  such,  it  is  objectionable  in 
omitting  the  word  lawful  before  the  words  'sovereign 
power;'  and  also  in  the  use  of  the  word  'and'  instead  of 
or;  because  the  same  law  cannot  command  one  action  and 
forbid  another,  as  it  would  then  be  two  laws.  The  same 
statute  or  ordinance  may  contain  both;  but  not  the  same 
law.t  And  even  if  the  same  statute  command  the  doing  of 
an  act,  and  forbid  the  doing  of  the  contrary,  it  would  be 
obnoxious  to  the  objection  stated  in  the  remarks  on  the 
twelfth  definition. 

No.  15.  Montesquieu  commences  his  immortal  work  on 
the  'Spirit  of  Laws'  with  this  definition  of  laws  in  the  ab- 
stract. It  is  difficult  to  conceive  in  what  respect  a  law  is 
a  relation,  or  a  relation  a  law,  though  relations  are  always 

'  Hooker  11.  1  Vide  remarks  ^n  .No.  t. 


266  OF   LAW,  [Lect.  VII. 

established  by  laws;  or  why  these  relations  are  necessary, 
and  are  said  to  result  from  the  nature  of  things.  Several 
points,  doubtful  perhaps,  in  physics  and  metaphysics, 
are  assumed  in  this  definition;  and  this,  were  it  correct  in 
other  respects,  would  render  it  objectionable.  A  defini- 
tion must  be  faulty  which  regards  as  a  principle  what  is 
doubted  or  denied  by  many.  But  if  this  objection  be 
waived,  as  far  as  it  extends  to  mere  physical  and  moral 
laws,  yet  the  definition  cannot  extend  to  various  other 
species  of  positive  laws,  and  consequently  cannot  be  re- 
ceived as  an  accurate  definition  of  the  genus  law. 

No.  16.  This  definition  is  rather  awkwardly  expressed. 
Law  is  not  a  rule  prescribed  'in  order  to  lay  an  obligation,' 
but  is  a  rule  whereby  an  obligation  is  laid.  The  word 
'sovereign/  also,  should  have  been  preceded  by  the  word 
lawful;  since  a  rule  is  not  a  law,  except  in  a  popular  sense, 
unless  the  superior  be  a  lawful  one.  In  the  absence  of 
this,  his  command  is  an  act  of  usurpation,  and  an  arbitrary 
mandate  creative  of  no  internal  obligation.  This  definition 
is  also  framed  expressly  with  a  view  to  embrace  permis- 
sions as  laws.  How  far  they  are  entitled  to  be  so  consi- 
dered, will  be  examined  presently.  They  certainly  are 
not  laws  as  to  those  who  are  at  'liberty  to  act  or  not,  as 
they  think  proper;'  although,  in  regard  to  others,  they  are 
laws  so  far  as  that  liberty  or  permissive  right  cannot  be  in- 
vaded by  them. 

No.  17.  The  observations  made  on  the  preceding  defini- 
tion apply  equally  to  that  of  Barbeyrac. 

No.  18.  Mr  Dagge,  in  his  very  able  'Considerations  on 
Criminal  Law,'  confesses  that  he  has  bestowed  due  pains 
on  his  definition,  and  'hopes  that  it  will  appear  full  and  sa- 
tisfactory.' Pie  expressly  states  it  to  be  a  definition  of 
law  in  the  genus.  But  it  is  obvious  that  he  limits  it  to 
the  actions  of  intelligent  beings  only.  Several  objections, 
we  think,  might  bo  made  against  it,  even  if  physical  laws 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  2()7 

are  properly  excluded  from  the  genus  law.*  He  is  fortu- 
nate, however,  in  being  the  first  to  introduce  the  word 
'lawful'  as  an  adjunct  to  the  word  'superior.'  But  it  is 
difficult  to  conceive  how  law  is  to  be  regarded  as  a  '■facul- 
ty.' Law,  indeed,  must  emanate  from  a  competent  faculty, 
but  can  never  be  itself  a  'faculty  whereby  some  lawful  su- 
perior prescribes  rules  of  action;'  for  the  law  consists  of 
these  very  rules,  and  not  of  the  power  or  authority  by 
which  they  are  prescribed. 

No.  19.  This  is  a  close  approximation  to  a  perfect  defi- 
nition of  law  as  a  genus.  It  would  perhaps  be  better  as  a 
definition,  and  less  of  a  description,  were  it  paraphrased, 
with  some  additions  to  it,  somewhat  after  the  following 
manner.  'Law  signifies  the  rules  of  animate  and  inani- 
mate, of  rational  and  irrational  action,  prescribed  by  some 
lawful  superior,  and  which  the  inferior  is  bound  to  obey.' 
We  have  ventured  to  use  the  word  rules  instead  of  a  rule, 
and  the  word  and  instead  of  or.  The  actions  to  which 
law  is  relative  being  extremely  various,  and  the  entities 
by  which  they  are  performed  being  almost  equally  so,  the 
genus  law  comprehends  rather  an  infinite  variety  of  dis- 
tinct rules,  than  a  rule  of  different  kinds.  The  substitution 
of  this  word  seemed  to  impose  the  adoption  also  of  'and' 
instead  of  'or.'  I  have  likewise  added  the  word  lawful 
to  the  word  'superior,'  not  indeed  for  the  reasons  assigned 
by  a  late  learned  judge  of  our  country,  who  objects  to  the 
word  'superior.'  'A  superior!'  says  Judge  Wilson,  'can 
there  be  no  law  without  a  superior?  Is  it  essential  to  law 
that  inferiority  should  be  involved  in  the  obligation  to 
obey  it?'t  The  brief  reply  to  these  questions  is,  that  if 
'consent  alone  can  make  a  law  binding,'  which  is  admitted, 
still  no  feature  of  despotism  is  implied  by  this  word  'supe- 
rior;' for  if  the  law  be  constituted  by  the  community,  that 

*  Vide  post  301,  where  this  point  is  considered. 
f  Wilson's  works  65. 


253  OF    LAW,  [Lect.  VII. 

community  is  the  superior,  and  the  individual  who  is  bound 
to  obey,  is  the  inferior.  There  is  nothing  odious  in  the 
term;  it  expresses  nothing  more  than  a  truism,  viz.  that  a 
whole  is  greater  than  a  part.  Again;  if  the  law  be  made 
by  the  legislature,  then  the  whole  community,  quoad  the 
law,  is  the  inferior,  and  the  legislature  is  the  superior.  I 
have  therefore  added  the  word  'lawful'  as  an  adjunct  to  the 
word  'superior,'  for  reasons  previously  assigned.* 

No.  20.  Few  definitions  have  been  so  severely  criticised 
as  that  of  civil  or  municipal  law  by  the  great  Commentator 
on  the  Laws  of  England.  Scarcely  a  word  in  it  has  es- 
caped the  most  critical  examination;  and  were  all  the  re- 
marks collected  to  which  it  has  given  rise,  they  would 
form  a  considerable  volume.  This  being  a  definition  of  a 
class  of  laws,  and  not  of  a  law,  is  objectionable,  as  it  seems 
to  exclude  one  species  properly  embraced  by  that  class,  viz. 
Permissions.  So,  also,  the  clause  'commanding  what  is  right, 
and  prohibiting  what  is  wrong,'  is  not  sufficiently  compre- 
hensive. If  the  wrong  or  right  alluded  to,  be  referrible  to  the 
law  itself,  because  commanded  or  forbidden,  the  definition 
would  have  been  better  without  the  clause;  and,  on  the 
other  hand,  if  they  be  referred  to  the  jus  naturse,  the  defi- 
nition falls  short,  as  civil  laws  frequently,  nay,  generally 
relate  to  things  indifferent  to  the  law  of  nature. t 

The  words  'supreme  power'  have  given  rise  to  conside- 
rable reproof,  and  yet  it  is  inconceivable  how  laws  can 
spring  from  any  other  source.  The  objection  is,  that  the 
Commentator  has  made  legislative  power  necessarily  iden- 
tical with  supreme  power.  Mr  Tucker,  in  his  annota- 
tions, denies  this  doctrine,  alleging  that  the  'jura  summa 
imperii,'  or  supreme  powers,  do  not  necessarily  apper- 
tain to  the  legislative  body,  but  that  in  the  American  states 

*  Vide  remarks  on  the  14th  and  16th  definitions. 

\  Vide  remarks  on  the  5th  definition;  also  Christian's  note  to  1  vol. 
Black.  Comm.  44. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  269 

they  reside  exclusively  in  the  people,  who  have  delegated 
to  their  legislatures  limited,  and  not  supreme  powers.*  Mr 
Tucker's  general  views  are  certainly  correct;  but  they  do 
not,  we  think,  fix  the  objection  on  the  expression  'supreme 
power  in  a  state,'  since,  as  far  as  legislation  is  concerned, 
the  legislature,  as  the  constituted  organ  of  legislation,  must 
be  the  supreme  power  in  every  country,  as  far  as  the  mak- 
ing of  laws,  within  their  constitutional  powers,  is  con- 
cerned. Nor  does  this  involve  the  absurdity  of  two  supreme 
powers  in  the  state,  viz.  the  legislature  and  the  people, 
since,  diverso  intuitu,  they  may  both  be  supreme.  In 
England,  moreover,  legislative  power  has  its  political,  as 
well  as  moral  or  natural  limitations;  and  legislative  power, 
I  presume,  is  no  more  inherent  in  parliament  than  in  our 
own  legislative  bodies,  though  there  may  be  a  greater  num- 
ber of  positive  limitations  on  the  powers  of  the  latter  than 
on  those  of  the  former.  The  theory  of  the  British  consti- 
tution is  essentially  the  same  as  our  own  in  this  respect, 
viz.  that  all  legislative  power  originally  flows  from  the  peo- 
ple. It  is  consequently  not  easy  to  perceive  how  it  can  be 
justly  predicated  that  in  the  American  states  supreme  pow- 
er resides  in  the  people,  but  in  England  in  the  legisla- 
ture. In  both  countries  it  may  be  said  that  supreme 
power  and  legislative  power  are  convertible  terms. 

Mr  Tucker  having  argued  this  point  with  his  usual  abi- 
lity, prefers  Justinian's  definition:  'Jus  civile  est  quod 
sibi  quisque  populus  constituit;'  the  word  'populus'  refer- 
ring to  the  source  of  the  entire  body  of  laws  and  institu- 
tions, from  whatever  authority  derived;  whether  immedi- 
ately from  the  people,  or  mediately  through  their  legislature, 
or  from  long  usage:  whereas  Justice  Blackstone's  definition, 
as  explained  by  himself,  refers  them  all  to  the  legislature, 

•  1  Tuck.  Black.  Comm.  46,  48,  notes  4,  5.    52  note  9.     53  note  10,  and 
appendix  A. 


270  °F    LAW,  [Lect.  VII. 

all  customs  and  unwritten  laws  being  supposed  to  have 
sprung  from  positive  legislation,  the  memorials  of  which 
have  ceased  to  exist.  That  a  Constitution  is  a  law,  we  are 
not  disposed  to  deny;  but  a  constitution  must  be  presumed 
to  have  originated  from  the  people,  before  the  legislature, 
in  common  with  the  other  organs  of  the  future  government, 
went  into  operation.  But  after  the  government  is  consti- 
tuted or  organized,  the  legislature  may  be  the  supreme 
power  in  the  state,  though  it  be  not  omnipotent;  unless  the 
people  should  have  reserved  to  themselves  in  all  cases 
a  constitutional  veto,  when  they,  in  truth,  would  be  the 
legislative  power,  and  thus  supreme  in  every  sense.  As 
to  the  customs  and  unwritten  laws,  they  are  not  per  se 
laws;  they  only  become  so  when  established  as  valid  by 
the  judicial  power,  which  itself  springs  from  the  legisla- 
tive power,  or  from  the  constitution.  Neither  in  England 
nor  in  this  country  do  the  people  make,  nor  can  they  make 
customs  laws. 

(5.)  Proposed  de-       Having  examined  the  foregoing  defini- 
finitions.  tions   with  some   care,    and    stated   with 

freedom  such  objections  to  them  as  we  believe  to  be  sound, 
it  is  natural  to  feel  a  hesitation  in  submitting  our  own 
views  as  to  the  proper  definitions  of  law.  We  shall  do  so, 
however,  without  an  attempt  to  vindicate  them,  as  they 
ought  to  share  the  fate  of  others  should  they  be  obnoxious 
to  any  of  the  objections  already  suggested  as  to  those  com- 
monly in  use. 

1.  Law,  in  its  most  abstract  and  comprehensive  signifi- 
cation, consists  of  that  system  of  rules  to  which  the  intel- 
lectual and  physical  worlds  are  subjected;  either  by  God, 
their  creator  and  preserver;  or  by  man,  when  invested 
with  competent  authority  so  to  do;  by  which  the  existence, 
rest,  motion  and  conduct  of  all  created  and  uncreated  enti- 
ties are  regulated,  and  on  the  due  observance  of  which 
their   identical  being  or    happiness  respectively  depends. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  271 

2.  A^  law  (meaning  any  law)  is  likewise  an  abstract 
term,  and  signifies  some  rule  of  action  regulating  matter  or 
mind,  a  created,  or  uncreated  entity;  ordained  either  by 
God,  or  man  having  authority  so  to  do,  by  which  the  ex- 
istence, rest,  motion  or  conduct  of  such  entities  respective- 
ly is  regulated,  and  on  the  due  observance  of  which  the 
identical  existence  or  happiness  of  each  depends. 

3.  'The  Law'  (not  meaning  a  single  or  definite  law)  is 
an  expression  that  ordinarily  excludes  physical  laws,  and 
also  those  affecting  other  intelligences  than  man,  in  which 
sense,  as  an  abstract  term,  it  embraces,  first,  the  totality  of 
rules  for  the  moral  regulation  of  human  economy,  either  na- 
tional or  individual,  established  by  the  universal  Sovereign, 
and  ascertained  by  his  Revelations,  by  reason,  conscience, 
or  otherwise:  secondly,  those  prescribed  and  promulgated 
by  lawful  human  superiors  for  the  government  of  men  as 
citizens;  and  lastly,  those  ordained  by  the  consent,  ex- 
press or  implied,  of  sovereign  states  for  the  guidance  of 
national  conduct,  and  of  international  communion;  to  all  of 
which  rules  those  respectively  to  whom  they  are  directed, 
are  obliged  to  make  their  several  actions  conformable. 

4.  Civil  or  Municipal  Law  signifies  those  rules  of  civil 
conduct  which  are  prescribed  and  promulgated  by  the  law- 
fully constituted  supreme  power  of  a  state;  some  com- 
manding what  shall  be  done;  some  designating  what  shall 
not  be  done;  and  others  pointing  out  what  may  be  done 
or  omitted  at  the  election  of  those  to  whom  they  are  res- 
pectively directed;  all  of  which  rules  are  obligatory,  and 
are  enforced  by  sanctions,  express  or  implied. 

5.  A  civil  or  municipal  law  is  a  particular  or  single  rule 
of  civil  conduct,  prescribed  and  promulgated  by  the  law- 
ful supreme  power  of  a  state;  commanding  something  that 
shall  be  done,  designating  something  that  shall  not  be 
done,  or  pointing  out  something  that  may  be  done  or 
omitted  at   the  election  of  those   respectively  to  whom   it 


272  O?    LAW,  [Lect.  VII. 

is  directed;  which  rule  is  obligatory  on  them,  and  is  en- 
forced by  some  sanction,  expressed  or  implied. 

(6.)  Properties  of  In  treating  the  properties  of  Law,  they 
Law,  how  divided.  may  be  considered  as  internal  and  ex- 
ternal. Those  which  are  implied  ex  vi  termini  are  inter- 
nal or  inherent  properties  of  a  law;  such  as  that  it  be  a 
rule;  that  it  emanate  from  a  lawful  superior;  that  it  cre- 
ate an  obligation;  that  it  involve  a  sanction,  &c.  The 
external  properties  are  those  which  respect  its  utilities, 
or  the  motives  for  its  enactment;  the  objects  which  are  to 
be  affected  by  it,  &c;  as,  for  example,  that  its  object  be  a 
possible  and  reasonable  one;  that  it  be  of  a  legal  nature; 
that  its  prohibitions  be  not  needlessly  multiplied;  and 
finally,  all  those  external  considerations  which  constitute 
the  philosophy  of  legislation. 

In  the  following  remarks  on  the  properties  of  law,  I  shall 
not  use  that  term  in  its  most  extended  sense,  but  only  as  ap- 
plicable to  intelligent  and  responsible  beings,  and  as  creative 
of  an  obligation  flowing  from  law  in  the  popular  sense  of 
that  word.  Every  rule  indeed  from  which  any  entity 
whatever  cannot,  will  not,  or  ought  not  to  deviate,  is  a 
law;  and  this  embraces  not  only  physical  rules,  but  coun- 
sel, advice,  a  transient  order,  a  promise,  a  covenant  or 
compact;  all  of  which  create  obligations,  and,  in  one  sense, 
are  so  many  laws.  But  laws,  in  their  more  restricted 
meaning,  the  properties  of  which  I  am  about  to  consider, 
do  not  ordinarily  embrace  any  of  these. 

„  ,     -  First.   Law  is  a  rule.      1.   This  term 

(1.)  Of  the  Inter- 
nal or  Inherent  pro-  is  said  to  indicate  the  universality  and 
perties  of  Law.  perpetuity  of  a  law,  thereby  distinguish- 

ing it  from  a  transient  order  made  by  a  lawful  superior, 
and  from  a  sentence,  which  concerns  a  particular  person 
only.  It  is  said  that  an  act  of  the  legislature  to  confiscate  the 
goods  of  Titius,  or  to  attaint  him  of  treason,  is  not  a  law, 
but  a  sentence  only  that  Titius,  in  consequence  of  having  vio- 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  273 

lated  some  existing  law,  has  subjected  himself  to  a  legisla- 
tive declaration,  sentence  or  decision,  by  which  the  penal- 
ty of  the  violated  law  is  merely  ascertained  and  enforced; 
and  that  the  act  is  not  properly  a  statute  nor  law,  nor  done 
in  the  exercise  of  legislative  power-  But  an  act  of  the  le- 
gislature, though  it  concern  but  few  persons,  or  a  single 
one  only,  is  still  a  law,  the  above  doctrine  applying  only 
to  a  quasi  judicial  sentence,  pronounced  by  a  body  which 
ordinarily  concerns  itself  only  in  legislation.  Thus  an 
act  of  the  legislature  which  enables  an  infant  or  a  feme 
covert  to  convey  lands;  which  divorces  A  from  B;  which 
gives  validity  to  a  defective  conveyance,  &c.  is  as  much  a 
law  as  one  which  forbids  universally  the  exportation  of 
corn.  2.  Law  is  said  to  be  a  rule  to  distinguish  it  from 
counsel  or  advice,  which,  though  it  may  be  a  means  of 
bringing  conviction  to  the  mind,  cannot  per  se  create  an 
obligation.  Advice  is  optional,  law  is  imperative;  the 
language  of  the  former  is  that  of  persuasion;  that  of  the 
latter  is  a  declaration  of  the  lawgiver's  will.*  Counsel 
offers  reasons  with  a  view  to  create  obligation;  law  acts  di- 
rectly, and  presumes  that  reason  coincides  with  power. t 
3.  It  is  said  to  be  a  rule  to  distinguish  it  from  a  compact 
or  covenant.  Among  the  democratic  nations  of  antiquity, 
nothing  was  more  usual  than  to  speak  of  laws  as  compacts 
or  covenants;  this  idea  entered  into  their  very  definitions 
of  law;  and  sometimes  affected  even  the  formulae  of  mak- 

*Puff.  N.  N.  book  1,  chap.  vi.  sec.  1.    Hobbes  De  Cive.  cap.  14,  sec.  1. 

|  'Law  does  not  teach,  but  commands  what  is  to  be  done.'  This  is  the 
language  of  Lycurgus,  among  the  most  ancient  of  lawgivers.  Law  and 
reason  have  much  to  do  with  one  another;  but  the  former  does  not  cease 
to  be  obligatory  by  being  either  unreasonable  or  inconvenient,  if  it  be  not 
malum  in  se.  Hence  it  is  aptly  said  by  the  civilians,  that  the  'currency  of 
the  law  is  not  to  be  disputed,  though  time  had  in  a  great  measure  worn 
down  the  image,  and  damaged  the  superscription.'  1  shall  have  occasion 
to  remark  on  this  doctrine  hereafter. 

.Jo 


274  >ov   LAW,  [Lect.  VII. 

ing  their  laws;  or  perhaps  these  formulas  gave  rise  to 
the  idea  of  laws  being  strictly  compacts.  Laws  being 
sometimes  made  in  the  form  of  a  Stipulation  and  Ac- 
ceptance by  the  people,  were  called  agreements.  But 
even  when  made  in  this  mode,  they  are  not  compacts, 
this  being  nothing  more  than  the  manner  in  which  the  su-. 
preme  power  indicates  its  will.  That  power  was  in  the 
majority  of  the  people;  but  when  the  law  was  promul- 
gated, it  obliged  not  only  the  majority,  but  the  minority 
also.  In  all  cases,  the  original  authority  to  make  laws,  be 
it  vested  in  whom  it  may,  must  have  flowed  from  consent 
or  agreement;  and  even  if  this  original  act  had  been  by 
the  unanimous  consent  of  the  members  of  the  community, 
it  would  not  follow  that  the  laws  subsequently  made  by 
that  power,  are  to  be  regarded  as  compacts.  In  all  com- 
pacts, the  obligation  is  of  our  own  direct  and  express  crea- 
tion. Their  language  is,  'I  agree  to  do  or  not  to  do,  to 
possess  or  not  to  possess;'  whereas  that  of  law  is,  'Thou 
shalt  or  shalt  not  do;  thou  shalt  or  shalt  not  possess.'" 

Secondly.  Law  is  a  rule  of  action.  In  the  restricted 
sense  in  which  we  now  use  the  word  law,  action  compre- 
hends only  the  moral  and  civil  conduct  of  man.  The 
former  is  regulated  by  the  laws  of  God  and  of  nature;  the 
latter  is  the  peculiar  object  of  human  legislation.  But 
moral  conduct  is  sometimes  the  subject  of  civil  laws,  as 
where  they  restrain  luxury,  inebriety,  religious  creeds  &c. 
These  in  their  effects  often  operate  prejudicially  on  others, 
and  do  not  terminate  in  the  person  of  the  agent,  and  in 
such  cases  become  the  proper  object  of  the  civil  law. 
Vices  which  are  purely  private  have  seldom  been  med- 
dled with  by  positive  legislation;  the  difficulty  has  been  to 
ascertain  the  exact  limits  which  separate  the  one  class  from 

Arist.  Rlict.  hook  I.  cap.  1,'2,  15.     Dion.  Malic,  lib.  10.    Taylor's  Civ. 
Law,  153.    I  Black.  Com.  45. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIED  275 

the  other.  Superstition  and  arbitrary  power  have  too  often 
confounded  them;  and  though  Demosthenes  has  eloquently- 
said  that  Maws  are  the  morals  of  the  state,'  they  become 
the  most  odious  tyranny  when  they  invade  the  sanctity  of 
private  opinion,  and  presume  to  dictate  even  rules  for  the 
palate;  as  Zaleucus  did  when  he  restricted,  under  the  pe- 
nalty of  death,  the  use  of  pure  wine  to  the  sick,  and  to 
them  only  when  the  physician's  certificate  could  be  obtained. 

Thirdly.  Law  is  a  rule  of  action  prescribed  and  promul- 
gated. It  is  obligatory  only  on  those  who  know  the  fact 
of  its  existence,  and  therefore  must  be  promulgated.  It 
imports  a  definite  order,  and  must  therefore  be  plainly 
prescribed,  that  it  may  be  understood. 

Natural  law  is  inscribed  on  the  heart  of  man  'by  the 
finger  of  God;'  and  is  promulgated  or  ascertained  from  di- 
vine revelation,  the  light  of  reason,  conscience,  senti- 
ment &c* 

Human  laws  should  not  only  be  prescribed  in  clear  and 
unambiguous  language,  but  be  efficiently  promulgated,  or 
conveyed  to  the  knowledge  of  those  on  whom  they  are  to 
operate.  We  have  seen  that  Hobbes  considers  both  so  es- 
sential to  the  just  notion  of  law,  that  he  has  made  them  a 
part  of  his  definition  of  that  term.  By  the  former  is  not 
meant  that  laws  should  be  written  out,  as  the  word  'pre- 
scribe' would  seem  to  import;  but  merely  that  they  be 
conveyed  in  language  as  free  from  ambiguity  as  possible, 
be  it  verbal,  written  or  printed.  In  regard  to  the  promul- 
gation of  laws,  justice  demands  that  they  be  made  known 
before  they  become  obligatory.  The  liberty  and  property 
of  the  citizen  may  indeed  be  placed  in  peril  by  the  vague 
and  unintelligible  language  of  the  laws;  but  much  more 
would  this  be  the  case  were  laws  permitted  to  operate 


*  Vide  post  313,  319,  where  the  various  theories  as  to  the  ascertainment 
of  the  dictates  of  the  Jus  Natural,  are  considered. 


27H  OF    LAW;  [Lect.  VII. 

without  due  promulgation;  and  still  greater  would  be  the 
jeopardy  of  all  that  is  dear  to  man,  were  actions  innocent 
when  done,  and  rights  vested  agreeably  to  existing  laws, 
made  penal  or  void  by  laws  subsequently  enacted.  It  is 
consequently  a  principle  of  universal  jurisprudence,  that 
laws,  civil  or  criminal,  must  be  prospective,  and  cannot 
have  a  retroactive  operation.  And  though  the  Constitu- 
tion of  the  United  States,*  in  its  prohibition  of  ex  post 
facto  laws,  has  been  construed  to  extend  only  to  criminal 
laws,  yet  this  is  only  declaratory  of  a  principle  sanctioned 
no  less  by  the  common  law  of  England,  than  by  universal 
law;  and  the  same  principle  enables  the  courts  to  disregard 
civil  laws  of  this  description,  as  equally  inoperative,  though 
not  within  the  letter  or  spirit  of  the  particular  clause  re- 
strictive of  ex  post  facto  laws,  t 

Although  there  are  English  authorities  which  recognize 
the  injustice  and  invalidity  of  express  retrospective  legis- 
lation, and  also  the  propriety  of  a  formal  promulgation  of 
laws  before  they  become  effective;  yet  it  is  a  received  doc- 
trine in  that  country,  that  laws  which  operate  in  that  man- 
ner by  implication  of  law,  and  of  which  there  has  been 
no  such  promulgation,  are  nevertheless  valid.  Before  the 
introduction  of  printing  into  England,  the  statutes  of  each 


*  Art.  1.  sec.  9,  10. 

f  Bracton  lib.  4,  fol.  228.  Digest  50,  17,  75.  Code  1,  14,  7.  Taylor's 
Civil  Law,  168.  Bacon's  Abridgment,  6  vol.  370.  Statute  (C.)  2  Institute 
292.  1  Black.  Cora.  46.  Coke  Litt.  360.  Gilmor  v.  Shuter,  2  Modern  Rep. 
310.  Bacon  De  Augm.  Scient.  lib.  8  cap.  3.  Puff.  N.  8f  N.  book  1,  ch.  6. 
sec.  6.  4  Burrow's  Rep.  2460.  2  Shower's  Rep.  17.  Calder  v.  Bull,  3  Dal- 
las' Rep.  386.  Ogden  v.  Blackledge,  2  Cranch's  Rep.  272.  Wilkinson  t. 
Myer,  2  Lord  Raymond's  Rep.  1352.  Ham  v.  McClaws,  1  Bay's  South  Car. 
Rep.  93.  Osborne  v.  Hager,  same,  179.  Bowman  v.  Middleton,  same,  252. 
Dash  v.  Van  Kleeck.  T.  Johnson's  N.  York  Rep.  477.  Society  v.  Wheeler, 
2  Gallison's  Rep.  103.  Dartmouth  College  v.  Woodward,  4  Wheaton's 
Rep.  518.  2  Coke's  Institute,  526.  4  Inst.  25.  1  Plowden's  Comm.  79.  1  Le- 
vinz'  Rep.  91,  6  Brown's  Parlia.  Cases,  553.  Latless  v.  Holmes,  4  Durnf.  & 
East's  Rep.  660. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  277 

session  of  parliament  were  usually  sent  to  the  sheriffs  of 
the    counties,    and   proclaimed   by    them    publicly.     This 
practice,  however,  ceased  in  the  time  of  Richard  II.     Some 
statutes  are   appointed  to    be  read    in  their   churches  and 
other  public  places;  and  they  are  often  printed  in  their 
newspapers,  and  in  other  forms;  but  the  English  law  has 
not  provided  any  general  mode  of  promulgating  laws,  nor, 
indeed,   was  promulgation  of  any  kind  ever  deemed   es- 
sential, even  when  the  sheriffs  &c.  were  required  to  pro- 
claim them.     Strange  as  it  may  seem,  every  statute,  until 
very  recently,  was   obligatory  from   the   first  day  of  the 
session  of  that  parliament  in  which  it  was  made,  unless  a 
particular  time  for  its  commencement  were  fixed  by  the 
statute.     This  rule  was  based  on  the  refined  notions,  first, 
that  every  subject  is,  in  judgment  of  law,  a  party  to  the 
making  thereof,   by   his   representatives;*   and  secondly, 
that  the  whole  session  must  be  regarded  as  but  one  day, 
for  which,  however,  no  reason  has  been  assigned  even  as 
s:ood  as  the  forced  one  first  mentioned.     The  mischief  and 
absurdity  of  this  doctrine  having  become  too  manifest  for 
endurance,  were  considerably  mitigated  by  the  statute  33 
George  III.   c.  13,  which  provides  that  when  no   time  is 
fixed,  statutes  shall  commence  their  operation  from  the  day  on 
which  they  receive  the  royal  assent.    This  statute,  however, 
only  lessened  the  period  in  which  legislation  could  operate 
retrospectively;  but  as  important  rights  and  innocent  actions 
intervening  between  the  day  of  the  royal  assent  and  the 
actual  promulgation  of  the  law,  are  affected  by  the  law; 
and,  moreover,  as  statutes  need  no  promulgation  at  all;  the 
doctrine,  as  it  now  stands,  is  at  variance  with  natural  jus- 
tice, and  the  principles  of  universal  jurisprudence.      Pro- 
mulgation however,  though  legally  essential,  would  not  re- 
quire that  actual  knowledge  of  the  law  should  be  brought 

*  1  Black.  Com.  178.  3  Reeves'  Hist.  Eng.  Law  147.  6  Bacons'  Abr.  369. 
Bentham's  Fragment  on  Gov.  xxvii. 


278  OF    LAW,  [Lect.  VII. 

home  to  the  individual  to  be  affected  by  it.  All  that  is 
ever  meant  by  the  promulgation  of  a  law  is,  that  it  shall  be 
duly  made,  and  in  such  a  manner  that  it  may  reach  those 
on  whom  it  is  designed  to  operate;  for  when  the  ordinary 
means  of  promulgation  have  been  used,  every  one  is  pre- 
sumed to  be  cognizant  of  the  law;  according  to  the  maxim, 
'ignorantia  juris  non  excusat.  '* 

The  English  doctrine  in  regard  to  promulgation  has  been 
adopted  in  this  country;  and  though  at  variance  with  the 
clearest  principles  of  justice,  it  is  perhaps  too  firmly  es- 
tablished by  judicial  decisions  to  be  shaken,  and  can  only 
be  remedied  by  some  adequate  legislative  provisions.  Or, 
in  cases  of  peculiar  hardship,  it  lays  the  foundation  for  a 
claim  on  the  justice  of  the  legislature  to  refund  what  is  ex- 
acted under  such  a  prospective  law,  and  to  indemnify  those 
who  are  prejudiced  by  it.  If  an  act  of  congress  be  silent 
as  to  the  date  of  its  operation,  it  commences  from  the  pas- 
sing of  the  act,  even  though  it  be  a  penal  one;  and  it  ope- 
rates on  all  rights  and  actions  then  existing,  though  the 
law  were  not  only  unknown,  but  impossible  to  be  known 
by  those  to  whom  it  is  directed.!     But  in  Patten's  casej 

*  Although  the  laws  of  Rome  were  said  to  be  made  populi  ju*su,  yet 
promulgation  was  deemed  essential,  since  they  generally  proceeded  ex 
auctoritate  senatus;  and  all  edicts  &c.  were  duly  published.  How  different 
this  from  the  odious  conduct  of  Caligula,  who  is  said  to  have  written  his 
laws  in  such  small  letters,  and  fixed  them  on  such  high  places,  that  it  was 
impossible  they  should  be  read.  The  Senatus-Consultum  Marcianum, 
which  was  discovered  at  Naples  in  the  year  1640,  was  engraved  on  a  bra- 
zen plate,  and  contained  the  following  provision.  'It  is  further  ordered 
by  this  decree,  that  these  presents  be  published  for  three  successive  mar- 
ket days,  in  your  common  assemblies,  to  the  intent  that  you  may  well  un- 
derstand the  pleasure  of  the  Roman  senate;  and  it  is  likewise  ordered 
that  you  engrave  this  decree  upon  a  brazen  tablet,  and  that  you  cause  it  to 
be  hung  up  where  it  can  be  most  easily  read;'  a  provision,  the  spirit  of 
which  should  guide  the  legislative  councils  of  England  and  this  country,  in 
neither  of  which  does  the  doctrine  of  promulgation  seem  to  form  an  essen- 
tial part  of  jurisprudence. 

t  The  Brig  Ann.  1  Gallison's  Rep.  62. 

}  l  Dane's  Abrid".  5S7.  s.  10. 


[Lect.  VII.  AND    ITS    GENERAL    PROPERTIES.  219 

the  court  held  that  an  act  of  congress  which  had  laid  an 
additional  duty  'from  and  after  the  passage  of  the  act,'  ex- 
cluded the  day  of  its  passage. 

Fourthly.  The  next  inherent  property  of  law  to  be 
considered,  is  sanction.  The  terms  sanction,  motive,  ob- 
ligation and  punishment  being  intimately  connected  in  the 
legal  notion  of  a  law,  have  often  been  strangely  con- 
founded, and  have  given  rise  to  much  casuistical  and  meta- 
physical discussion.  When  attentively  considered,  howe- 
ver, they  will  be  found  to  convey  very  distinct  ideas,  as 
may  be  made  obvious  perhaps  without  much  subtile  in- 
quiry. 

Man,  as  an  intelligent  being  and  a  free  agent,  is  guided 
in  all  his  actions  by  reason,  or  what  he  takes  to  be  such. 
He  is  operated  upon  by  motives;  and  they  all  lead  him  to 
seek  pleasure,  and  to  avoid  pain.  These  are  the  final 
causes  of  every  obligation  to  which  man  is,  or  conceives 
himself  to  be  subjected.  Sanctions  are  the  prospective 
pains  or  pleasures  that  lead  men  to  act,  or  to  refuse  to  act; 
they  are  the  sources  of  obligation,  and  though  properly 
distinguishable  from  motives,  they  only  differ  from  them 
as  a  causa  causans  does  from  a  causa  causata.  It  is 
usual  to  divide  sanctions  into  four  classes,  in  reference  to 
the  principal  sources  of  pleasure  and  pain;  these  are  called 
physical,  moral,  religious  and  legal,  a  brief  explanation 
of  which  may  be  necessary. 

1.  Physical  Sanction  is  some  prospective  corporal  evil 
or  bodily  suffering,  the  usual  result  of  violating  the  laws  of 
our  physical  constitution. 

2.  Moral  Sanction  is  the  violence  that  will  be  done  to 
our  conscience,  moral  sensibility,  or  regard  for  virtue;  the 
ordinary  result  of  our  violating  the  dictates  of  right  rea- 
son, the  moral  sense,  or  whatever  may  be  the  source  of  our 
knowledge  of  right  and  wrong. 


2S0  OF    LAW,  [Lcct.  VII. 

3.  Religious  Sanction  is  some  evil  in  this  or  the  life 
to  come,  which  we  believe  will  be  consequent  upon  the 
commission  or  omission  of  certain  actions  (if  not  repented 
of)  forbidden  by  the  law  of  God. 

4.  Legal  Sanction  is  some  threatened  evil,  whether  cor- 
poral or  mental,  made  expressly  consequent  on  the  neglect 
of  some  positive  requisition  of  a  human  legislator. 

There  appears,  however,  to  be  another  source  of  plea- 
sure and  pain,  not  comprehended  within  the  just  notion  of 
either  of  the  preceding  sanctions,  and  that  is  the  value  we 
place  on  the  estimation  of  our  friends  and  the  world  at 
large.  The  moral  sanction  seems  to  embrace  only  matters 
of  conscience;  but  there  are  matters  of  honour,  fame,  re- 
putation, vanity  &c.  which  actuate  extensively  our  conduct, 
and  yet  affect  in  no  degree  our  conscience.  Hence,  we 
think,  there  should  be  a  distinctive  name  for  that  sanction 
which  leads  us  to  covet  the  good  will  of  those  around  us, 
and  of  men  generally;  and  this  may  be  denominated  the 
social  sanction.  Those  philosophers  who  refer  every  act 
to  some  selfish  principle,  speak  of  selfish  obligations,  and 
consequently  of  selfish  sanctions;  but  this,  we  apprehend, 
is  manifestly  incorrect,  as  they  resolve  all  others  into  this, 
and  therefore  a  distinctive  name  is  unnecessary. 

To  illustrate  the  operation  of  these  several  kinds  of 
sanction,  we  may  contemplate  the  situation  of  a  man  of 
refined  sensibility,  religious  and  moral  principles,  regard- 
ful of  health,  beloved  by  wife,  children  and  friends,  and 
possessed  of  ample  means  to  enable  him  fully  to  enjoy 
every  blessing.  By  one  of  those  fatalities  to  which  the 
best  of  men  are  sometimes  subject,  he  becomes  intemperate, 
loses  his  nice  sensibilities,  is  regardless  of  religious  mo- 
tives, forfeits  the  love  and  esteem  of  those  around  him, 
and  with  them  his  health  and  property.  He  is  subjected 
to  an  interdict  under  the  law  which  declares  confirmed 
sots  >w)i   sui  juris-,  and  .•subjects  them  to  solitary  confine- 


Lect.  Til  AND     ITS    GENERAL    PROPERTIES.  281 

ment.  In  that  deplorable  condition  his  thoughts  are  di- 
rected inward;  reflection  at  one  view  presents  to  him  the 
pleasures  he  has  forfeited,  and  the  pains,  present  and  fu- 
ture, that  are  consequent  on  his  vice.  The  physical  sanc- 
tion admonishes  him  that  persistence  in  his  infirmity 
must  terminate  in  death.  The  moral  and  social  sanctions 
bid  him  remember  the  charms  of  friendship,  the  bliss  of 
conjugal  life,  the  value  of  reputation,  the  glory  of  his 
former  fame;  all  of  which  may  not  be  irretrievably  gone. 
The  religious  sanction  adds  its  powerful  appeal,  thunders 
its  dreadful  comminations,  and  whispers  its  inviting  pro- 
mises. Lastly,  the  legal  sanction  presents  the  horrours  of 
a  prison,  secluding  him  from  every  thing  but  his  own  ago- 
nizing feelings.  The  complete  operation  of  these  puni- 
tory and  remunerative  sanctions  ends  in  a  confirmed  sense 
of  obligation,  and  with  that  his  vice  is  forever  aban- 
doned. 

Sanctions  may  be  called  the  threatened  evils,  and  pro- 
mised goods  of  the  law;  they  operate  as  motives  produc- 
tive of  obligation,  or  the  state  of  being  bound;  and  when 
disregarded,  are  followed  by  •punishments,  which  are 
nothing  more  than  the  executed  sanctions  of  the  law. 
Sanction,  motive,  obligation  and  punishment  are  correla- 
tive terms;  and  as  the  first  of  these  may  be  divided  into 
five  classes,  the  others,  in  like  manner,  may  be  distinguish- 
ed as  physical,  moral,  social,  religious  and  legal.  The 
avowed  object  of  human  laws  is  to  operate  by  the  civil  or 
legal  sanction;  but  this  is  by  no  means  the  full  extent  of 
their  operation  in  fact,  or  of  the  sound  theory  on  the  sub- 
ject. Nor  do  the  divine  and  natural  laws  enforce  obedi- 
ence solely  through  the  religious  and  moral  sanctions. 
Laws,  human  and  divine,  may  have  express  sanctions, 
and  yet  be  operative  mainly  in  virtue  of  other  sanctions. 
A  civil  law,  for  example,  which  prohibits  adultery  under 
the  penalty  of  a  heavy  mulct,  is  greatly  aided  by  the 
36 


382  OF    LAW,  ILectVn. 

moral,  religious  and  social  sanctions,  especially  by  the  lat- 
ter. The  human  prohibition  is  merely  declaratory  of  na- 
tural and  divine  law,  and  cumulative  of  their  sanctions. 
The  same  remarks  apply  to  actions  forbidden  by  the  divine 
and  natural  law,  but  which  are  not  cognizable  under  any 
civil  law;  in  which  case  the  social  unites  with  the  moral 
and  religious  sanctions  to  prevent  their  commission.  In 
regard  to  offences"  purely  legal,  usually  denominated  mala 
prohibitum  and  which  are  purely  indifferent  under  the  jus 
naturae,  it  has  been  questioned  whether  they  bind  the 
conscience  at  all.  On  this  point  Mr  Justice  Blackstone 
has  expressed,  we  think,  an  unsound,  and  certainly  a  very 
unsalutary  doctrine. 

The  opinion  of  the  learned  commentator  is,  that  they 
have  no  concern  whatever  with  the  conscience,  and  that 
such  laws  merely  offer  to  the  subject  the  alternative 
of  obedience  to  the  law,  or  submission  to  its  penalties.* 
I  am  not  disposed  to  enter  into  this  controversy,  especially 
as  it  has  been  so  ably  refuted  by  Mr  Sedgwick  in  his 
Critical  Remarks  on  the  Commentaries;!  and  also  by 
Judge  Tucker  in  one  of  his  learned  annotations. % 

Compliance  with  law  not  being  optional,  sanction  of  some 
kind,  express  or  implied,  must  be  an  essential  ingredient 
in  every  law.  Even  when  the  motive  which  prompts  to  obe- 
dience is  wholly  remunerative,  as  is  sometimes  the  case 
with  a  law,  the  proffered  reward  may  be  justly  considered 
as  a  sanction,  since  the  loss  of  a  possible  gain,  which  \s 
consequent  on  disobedience,  may  considerably  affect  the 
state  or  happiness  of  those  who  disregard  the  law;  and,  on 
the  other  hand,  may  operate  as  a  powerful  inducement 
with  others  to  respect  it.  This,  however,  does  not  seem 
to  justify  the   idea  of  Bishop  Cumberland, §  that  all   laws 

*  1  Black.  Com.  ST.  ♦  Sedgw.  Cri.  Rem.  52  to  64. 

♦  1  Tucker's  Blcek.  .SR.     §  Do  Leg.  Nat.  Proleg.  see,  U  and  cap.  6, see.  40. 


L«ct.  VII.]  AND    ITS    GENERAL    PROPERTIES.  233 

may  be  considered  as  sustained  rather  by  remunerative 
than  punitory  sanctions.  He  supposes  that  even  where 
death  is  the  penalty  of  a  law,  our  life  is  preserved  to  us 
by  obedience,  and  that  we  respect  the  law  rather  from 
the  love  of  life,  and  for  the  preservation  of  a  good,  than 
from  the  desire  of  escaping  the  evil  of  death;  and  so  in  all 
other  cases,  respect  for  the  laws  secures  to  the  compliant 
its  appropriate  reward.  The  brief  reply  to  this  doctrine 
is,  that  by  a  remunerative  sanction  we  mean  some  good  or 
reward  directly  consequent  on  obedience  to  a  law,  and 
which  is  purchased,  as  it  were,  by  such  compliance;  and 
not  the  retention  of  any  good  previously  our  own,  and  of 
which  we  are  merely  permitted  the  continued  enjoyment 
if  we  respect  the  behests  of  the  law.  So  essential  to  the 
just  notion  of  a  law  is  sanction,  that  the  civilians  generally 
would  not  admit  the  possibility  of  law's  subsisting  without 
one.  Hence  was  it  that  Leges  were  often  called  by  them 
sanclx;  not  from  any  presumed  sanctity  inherent  in  laws, 
but  because  they  are  made  binding  by  the  penalty  that 
awaits  their  infraction.  Proprie  dicimus  sancta  quae 
ncque  sacra  neque  profana  sunt,  sed  sanctione  quadam 
confirmata;  ut  leges  sanctae  sunt.'*  And  it  is  a  principle 
of  the  common  law  of  England,  that  where  a  law  has  omit- 
ted to  declare  any  sanction,  the  courts  are  authorized, 
in  the  exercise  of  a  sound  or  legal  discretion,  to  punish 
the  offender,  usually  by  fine  and  imprisonment.  In  the 
Roman  and  other  codes,  instances  are  stated  of  laws  in 
which  no  sanction  is  expressed;  and  a  few  in  which  scarce- 
ly any  can  be  implied.  These  are  called  imperfect  laws. 
Inter  leges  quoque  ilia  imperfecta  esse  dicitur,  in  qua  nulla 
deviantibus  poena  sancitur.t  Thus  the  Lex  Cicinia  annex- 
ed no  other  sanction  than  that  its  violator  should  be  held  to 
have  done  wickedly.     But  Puffendorf,  on  the  authority  of 

*  Dig.  1.  R.  9.  S.  i  Macrob.  in  Somn.  Scipi.  c.  n.«;  IT. 


284  or   LAW,  [Lect  "VII. 

Tacitus  and  Cicero,  is  of  opinion  that  the  Censors  possessed 
the  power  to  enforce  the  law  by  some  substantive  punish- 
ment; and  if  not,  that  the  infamy  consequent  upon  diso- 
bedience, was  of  itself  a  penal  sanction.*  The  same 
remark  applies  to  the  Valerian  law,  which  merely  declared 
that  its  violation  should  be  deemed  a  wicked  act.  Livy 
observes  on  this,  'I  suppose  it  was  judged  of  sufficient 
strength  to  enforce  obedience  to  the  law  in  those  days;  so 
powerful  was  then  men's  sense  of  shame:  at  present  one 
would  scarcely  make  use  of  such  a  threat  seriously,  even 
on  any  ordinary  occasion. 't  Of  the  same  description  are 
various  laws  mentioned  by  Diodorus  Siculus,  which  are 
remarked  on  by  Puffendorf  and  others;  such  as  that  of 
Zaleucus,  'Let  the  citizen  who  prosecutes  his  enemy  with 
implacable  violence,  be  deemed  a  man  of  a  barbarous  dis- 
position'.'' and  other  ancient  laws,  as,  'Let  no  free  woman, 
unless  she  be  drunk,  be  attended  by  more  than  one  maid.' 
'Let  no  man  wear  a  gold  ring,  or  be  clad  with  splendour, 
unless  he  has  been  guilty  of  adultery.''  These  were  cer- 
tainly effectual  means  of  guarding  against  the  evils  of  lux- 
ury, and  were  probably  the  most  powerful  sanctions  that 
could  have  been  justly  annexed  to  such  laws. 

Fifthly.  We  are  now  to  inquire  into  the  nature  of  Obli- 
gation, a  property  inherent  in  every  law,  and  essential  to 
its  existence.  Not  that  laws  invariably  insist  on  the  actual 
execution  or  omission  of  the  things  commanded  or  forbid- 
den; on  the  contrary,  they  generally  insist  merely  on  the  al- 
ternative of  obedience,  or  of  submission  to  their  sanctions. 

The  term  obligation  has  given  rise  to  much  cunning 
learning,  and  refined  casuistical  discussion.  The  true  de- 
finition of  the  term;  its  various  kinds,  as  internal,  exter- 
nal, perfect,  imperfect;  its  species,  as  religious,  moral,  phy- 

*  Tacit.  Ann.  book  XIII.  Cicero  de  Leg.  lib.  2,  cap.  9.  Puff.  L.  N.  N. 
lib.  1.  cap.  vi.  sec.  xiv. 

f  Baker's  Livy,  book  10   chap,  ix- 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  285 

sical,  civil,  social  &c;  the  true  theory  of  its  source  or 
origin;  how  it  is  distinguished  from  motive,  how  from  sanc- 
tion; on  what  it  is  founded;  how  it  differs  from  com- 
pulsion; whether  there  be  degrees  of  obligation,  &c;  are  to- 
pics that  have  engaged  the  attention  of  philosophers  from 
the  days  of  Plato  and  Aristotle,  to  those  of  Stewart  and 
Cogan.  It  is  far  from  my  design  to  enter  at  large  on  any 
of  these  mooted  questions;  it  is  sufficient  that  the  student 
be  apprised  of  them,  and  that  we  present  to  him  some  of 
the  more  useful  results  in  which  these  discussions  have 
terminated,  together  with  the  leading  sources  of  informa- 
tion on  all  these  points. 

The  word  obligation  is  often  used  in  a  popular  sense  as 
synonymous  with  motive;  thus  we  say,  'the  obligations 
are  strong,'  meaning  thereby  that  the  motives  or  induce- 
ments to  do  or  to  omit  an  act,  are  strong.  But  obligation, 
in  its  metaphysical  and  true  sense,  admits  of  no  degrees  nor 
divisions;  it  is  a  state,  in  which  a  free  agent  is  placed  after 
a  judgment  is  formed  by  him,  on  all  the  motives  that  are 
presented  to  his  mind  on  either  side  of  the  point  to  which 
the  obligation  relates.  Obligation,  therefore,  being  an 
effect,  a  judgment  or  conclusion  of  reason,  admits  of  neither 
degrees  nor  divisions.  An  inducement  or  motive,  on  the 
other  hand,  is  a  mere  cause.  It  is  any  thing  which  contri- 
butes to  the  production  or  prevention  of  an  action,  and 
is  therefore  infinitely  various  in  its  nature  and  degrees. 
Sanction  differs  from  obligation  as  cause  does  from  effect: 
an  obligation  is  a  tie,  a  sanction  is  a  motive  productive  of 
that  tie;  the  latter  serves  to  bind,  the  former  is  the  state 
of  being  bound.  The  source  of  obligation,  or  the  reason 
why  a  free  agent  is  morally  bound  in  any  case,  has  been  a 
question  of  much  supposed  difficulty.  The  theories  on  the 
subject  are  numerous,  and,  like  most  others,  are  generally 
obnoxious  to  the  objection,  that  they  repose  on  some  single 
and  pervading  principle  as  the  fountain  of  all  obligation; 


286  OF    LAW.  [Lect.  VK. 

in  like  manner  as  the  power  of  moral  discrimination  ha^ 
been  referred  by  various  philosophers  to  some  single  and 
independent  source,  instead  of  being  referred  to  most  of 
them  combined,  or  to  all  of  them.  So  various  have  these 
theories  been,  that  Lord  Kaimes  jocosely  remarks  that  an 
account  of  them  would  be  a  'delicate  historical  morsel;' 
and  Mr  Bentham  amuses  himself  at  their  expense  by  enu- 
merating the  phrases  that  characterize  the  several  systems, 
and  briefly  commenting  on  each,  in  such  a  manner  as  to 
place  in  high  relief  their  refined  absurdities.* 

A  man  is  said  to  be  obliged  to  abstain  from  injustice  of 
any  kind,  when  the  motive  or  motives  which  gain  the 
ascendancy  over  any  counter  motive  or  motives,  are  accom- 
panied by  a  conviction  that  it  is,  on  the  whole,  better  for 
him  to  proceed  according  to  the  rule  prescribed  to  him, 
than  to  disregard  it. 

But  whence  these  motives  proceed,  how  they  are  ascer- 
tained, and  why  they  are  obligatory,  constitute  the  diffi- 
culty so  long  inquired  into.  By  some  philosophers  it  is- 
said  that  we  are  bound  in  all  cases  by  the  'Moral  Sense;' 
others  say  by  'Common  Sense;'  by  the  'Eternal  Fitness'  of 
things;  by  the  'Understanding;'  by  the  'Rule  of  Right;' 
by  the  '&ove  of  Truth;'  by  'Utility;'  by  the  'Law  of 
Nature;'  by  the  'Will  of  God;'  by  'Instinct;'  by  'Inter- 
nal Sensations;'  by  the  'Inductive  Principle;'  by  'Self-In- 
terest;' by  'Benevolence;'  by  'Love  towards  God;' "by  'Gra- 
titude' for  former  favours  received;  by  'Inspiration;'  by 
reason  of  being  one  of  the  'Elect;'  by  a  'Sentiment  of 
Obligation,'  &c.  &c.t 

*  Bentham's  Prin.  of  Mor.  and  Legis.  xiii. 

t  Cogan's  Ethical  Questions,  341  to  410.  Ellis'  Dissertation  on  Obliga- 
tion. Burlamaqui's  Institutes,  N.  Law.  Part  i.  ch.  vi.  sec.  ix.  ch.  viii.  sec. 
xi.  Paley's  Mor.  and  Pol.  Philo.  book  2.  Puff,  book  1,  ch.  vi.  sec.  v.  vi~ 
Good's  Book  of  Nature,  vol.  2,  lee.  vi.  3  Reid's  Inqui.  ch.  vi.  vii.  viii.  Beat- 
tie  on  Truth,  part  1,  ch.  iii.  lee.  vii.  Stewart's  Essays,  p  123.  2  Ruther- 
forth's  Insti.  219,  sec.  S,  4,  5.     Ruth,  Essay  on  Virtue,  ch.  vii. 


Lect.  VH.j  AND    ITS    GENERAL    PROPERTIES.  287 

Notwithstanding  the  mass  of  learned  and  subtile  inquiry 
which  marks  the  progress  of  the  questions  concerning  the 
source  of  obligation,  I  cannot  persuade  myself  that  they 
are  attended  by  that  intrinsic  difficulty  which  justifies  the 
labour  bestowed  on  them.  It  appears  to  me  that  the  ra- 
tionale of  all  that  is  really  useful  in  the  inquiry  must  be 
built  on  a  few  undeniable  postulates,  which  may  perhaps 
be  stated  as  follows. 

1.  That  some  things  are,  by  a  law  of  man's  nature,  pre- 
ferable to  others. 

2.  That  among  these,  happiness  is  preferable  to  misery; 
and  so  of  the  degrees  of  each. 

3.  That  man  is  so  constituted  by  nature  as  to  pursue 
happiness,  or  what  he  conceives  to  be  such,  in  preference 
to  misery;  and  so  of  the  degrees  of  each. 

4.  That  God  has  endued  man  with  reason,  conscience, 
instinct;  and  has  added  to  these  revelation;  and  man,  by 
means  of  them  all,  has  gained  knowledge  or  experience; 
through  the  instrumentality  of  the  whole  of  which  he  is 
enabled  to  ascertain  with  a  certainty  equivalent  to  demon- 
stration, the  things  which  contribute  to  happiness,  or  lead 
to  misery;  and  so  of  the  degrees  of  each. 

5.  That  when  these  several  means,  (and  in  some  cases 
less  than  all)  are  brought  to  operate  on  any  question  of 
duty,  a  judgment  is  eventually  formed,  accompanied  by  a 
conviction  that,  if  this  judgment  be  disregarded,  he  merits, 
or  certainly  will  suffer,  some  evil  greater  in  amount  than 
any  which  can  flow  from  compliance  with  the  judgment. 

6.  That  the  operations  of  the  human  mind,  (in  many 
cases  the  result  of  habit)  are  sometimes  inconceivably  ra- 
pid; giving  to  the  conviction  of  obligation  the  appearance 
of  intuition,  moral  sense,  instinctive  sentiment,  &c. 

The  definitions  of  obligation  have  been  as  various  as  the 
explanations  of  its  origin.  I  shall  not  refer  to  any  of  them, 
but  endeavour  to  define  the  word  in  two  ways,  either  of 


2SS  OF    LAW,  [Lect    VII. 

which,  it  is  hoped,  will   sufficiently  indicate  my  general 
views  as  to  its  nature  origin  and  kinds. 

1.  Obligation  is  a  duty  imposed  on  a  responsible  being 
by  the  judgment  or  conviction  of  his  own  mind,  ascertain- 
ed by  the  means  of  reason,  conscience,  instinct,  revelation 
or  experience;  the  person  being  affected  by  a  selfish,  social 
or  religious  impulse  or  motive,  (or  by  some  or  all  of  them 
united;)  and  by  the  due  observance  of  which  he  knows  or 
believes  that  his  happiness  is  in  some  degree  to  be  affect- 
ed: or — 

2.  Obligation  is  the  state  of  being  bound,  of  which  an 
intelligent  and  free  agent  is  conscious;  in  which  he  believes 
that  a  defined  thing,  enjoined  or  forbidden  by  a  known 
and  competent  power,  must  be  done  or  avoided  by  him 
in  order  to  escape  some  prospective  evil  consequent  on  dis- 
obedience; and  which,  in  his  estimation,  is  greater  than 
any  that  can  arise  from  obedience. 

Obligations  are  said  to  be  internal,  external,  perfect  and 
imperfect. 

I  am  inclined  to  think  that  all  obligation  is,  properly 
speaking,  internal;  for  if  the  reason  and  conscience  be  in 
no  way  implicated,  it  is  mere  compulsion,  or  physical  ne- 
cessity. So,  also,  all  obligation,  correctly  speaking,  is  per- 
fect; at  least  as  to  the  person  affected  by  the  obligation. 
But  as  these  terms  have  a  popular  and  useful  signification, 
it  is  proper  to  remark  that  by  an  internal  obligation  is 
meant  one  that  is  mainly  produced  by  reason  and  con- 
science; and  by  external  obligation  is  generally  meant 
that  which  is  created  merely  by  the  will  of  a  human  legis- 
lator. 

Having  explained  sufficiently  the  nature  of  this  impor- 
tant property  of  laws,  there  remains  a  subject  connected 
with  it,  which  has  puzzled  nearly  all  who  have  treated  of 
the  morals  and  philosophy  of  jurisprudence;  I  allude  to 
the  question  whether  Permissions  are  to  be  regarded  as 


Lect.  VII  AND     ITS    GENERAL    PROPERTIES.  289 

laws.  It  appears  to  me,  however,  that  neither  the  utility 
nor  the  difficulty  of  the  questijn  merited  the  thought  be- 
stowed on  it.  What  I  have  to  say  on  it,  therefore,  will 
be  as  brief  as  the  point  will  admit. 

There  can  be  no  question  that  the  word  'permission'  im- 
ports, ex  vi  termini,  nothing  beyond  a  mere  option  in  him 
who  enjoys  the  permission;  and  that  every  feature  of  ob- 
ligation is  necessarily  excluded  as  to  him.  It  is  equally 
clear  that,  if  a  permission  be  a  right  of  any  kind  in  him 
who  may  claim  its  benefit,  all  others  are  bound  to  leave 
him  in  its  undisturbed  possession,  and  consequently  that, 
as  to  such  third  persons,  there  is  a  law  obliging  them  to 
respect  the  permission  claimed  by  another.  But  this  does 
not  solve  the  difficulty,  nor  is  it  by  any  means  to  be  ad- 
mitted that  the  law  which  prevents  such  persons  from  in- 
terfering with  the  permission,  will  give  to  permissions 
themselves  the  character  of  laws  as  to  any  persons  what- 
ever. It  is  presumed  that  every  conceivable  permission 
may  be  classed  under  one  or  the  other  of  the  following 
heads. 

1.  Where  a  permission  arises  from  the  mere  silence  of 
the  law;  that  is,  from  the  absence  of  all  legislation  on  the 
subject. 

2.  Where  it  flows  from  the  circumstance  that  an  affirma- 
tive or  negative  law  has  failed  to  enumerate  the  case 
claimed  as  a  permission;  this  non-enumerated  case  may  be 
called  a  permission  by  implication  of  law. 

3.  Where  certain  persons  or  things  arc  \y  ex- 
empted from  the  operation  of  a  law. 

4.  Where  a  law  grants  an  c^  xmissien,  called  a 
privilege,  to  some  particular  person  or  persons;  and  pro- 
hibits others  from  interfering  with  such  permission  or  pri- 
vilege. 

In  all   the   foregoing  iaim   the   be- 

nefit of  the   permission,  is   not  oi  whereas 


290  0F   LAW,  [Lect.  VII. 

all  others  are  obliged  to  abstain  from  interrupting  the  per- 
son claiming  the  exercise  oi  the  permission.  Still  it  can- 
not be  correctly  predicated  of  permissions  that  they  ob- 
lige, or  operate  as  laws  on  any  one.  For  though  others 
are  bound  to  respect  them,  they  are  bound,  not  by  any  part 
or  quality  of  the  permission,  but  in  virtue  of  a  distinct  law; 
and  though  the  prohibition  be  contained  in  the  same  sta- 
tute, it  is  as  distinct  from  the  permission  itself  as  if  contain- 
ed in  another  statute.  The  whole  question,  then,  appears  to 
resolve  itself  into  a  mere  point  of  verbal  accuracy,  and 
though  much  nice  and  nearly  incomprehensible  learning 
has  been  displayed  on  the  point,  I  am  unable  to  perceive 
that  any  other  positions  can  be  extracted  from  it  than,  first, 
that  all  permissions  must  necessarily  be  attended  either  by 
an  express  or  an  implied  law,  inhibiting  others  from  vio- 
lating them;  and  secondly,  that  permissions  themselves 
can  never  be  laws,  either  as  to  those  who  claim  their  bene- 
fit, or  as  to  others  who  would  interfere  with  their  exercise. 
This  view  of  the  subject,  so  natural  in  itself,  appears,  as 
far  as  I  know,  to  have  escaped  the  attention  of  those  who 
have  written  so  extensively  on  the  subject.* 

s .  of  t[ie  Ex_  I  am  now  to  examine  the  external 
ternal  properties  of  properties  of  law,  so  far  at  least  as  will 
Laws-  enable    the    student   to    comprehend   the 

general  outline  of  a  subject  which  embraces  nearly  the 
entire  philosophy  of  legislation;  and  which  is  consequent- 
ly quite  too  extensive  to  admit  of  any  thing  more  than 
a  statement  of  its  prominent  features. 

No  science  is  more  recondite,  no  art  more  complex  and 
difficult,  than  that  oi  sound  legislation.     It  demands  an  in- 


*  Ellis'  Roman  Law,  19  to  22,  111,  192,  281.  1  Campbell's  Grotius,  14. 
in  nolis.  Burlam.  Inst.  100.  1  Ruther.  Inst.  N,  L.  10  to  22.  Puff".  N.  L, 
book  1,  cli.  vi.  itc.  xv.  Grotius  de  jure,  13.  ac  P.  lib.  1.  cap.  3.  sec.  ix, 
and  note  5.    2  Beatlie's  Mor.  Sci.  US.    Taylor's  Civil  Law,   17.  1?.  Digest 


Lect.  VII]  AND    ITS    GENERAL    PROPERTIES.  ~;!'l 

timate  acquaintance,  not  only  with  the  moral  and  physical 
nature  of  man,  but  a  thorough  knowledge  of  the  adsciti- 
tiuus  character  of  those  in  particular  for  whom  the  laws 
are  to  be  provided.  A  code  of  jurisprudence  entirely 
adapted  to  advance  the  happiness  and  prosperity  of  a  nation, 
would  be  the  greatest  effort  of  human  skill  and  wisdom. 
That  laws  ma)'  promote  the  general  prosperity  with  as  lit- 
tle sacrifice  of  individual  good  as  possible;  that  they  may 
enlarge  the  intelligence  and  wealth  of  the  community, 
with  a  strict  regard  to  its  morals;  that  they  may  maintain 
perfect  subordination,  without  oppressive  and  trivial  re- 
strictions; and  that  they  may  regulate  private  conduct, 
without  invading  the  sanctity  of  private  opinion,  and  bind- 
ing to  modes  of  faith;  have  been  at  all  times,  and  in  all 
countries,  the  great  desiderata  of  enlightened  legislators, 
philosophers  and  statesmen.  Mr  Bentham,  in  his  work 
entitled  'An  Introduction  to  the  Principles  of  Morals  and 
Legislation,'  has  entered  largely  into  this  very  interesting 
topic,  in  a  manner,  indeed,  very  peculiar,  and  a  little 
too  eccentric  for  a  work  so  grave  and  didactic.  Mr  Ben- 
tham, with  a  view  of  presenting  a  general  idea  of  the  na- 
ture and  extent  of  the  subject,  has  stated  in  his  preface 
what  he  conceives  to  be  the  proper  topics  and  divisions  of 
a  complete  code,  or  Treatise  on  the  Jurisprudence  adapted 
to  the  wants  of  a  nation;  his  own  work  being  mere  prolego- 
mena to  a  more  extensive  one,  with  which  he  designed  to 
favour  the  publick.  That  the  student  may  have  a  like  notion 
of  the  subject,  according  to  the  views  which  I  entertain  on 
it,  I  shall  avail  myself  of  Mr  Bentham's  divisions  in 
part,  not  adopting,  however,  his  order,  or  his  exact  phra- 
seology; and  I  shall  also  add  considerably  to  his  divisions, 
so  as  to  supply  what  occur  to  me  as  important  omissions  in 
his  arrangement. 

The    Principles    and    Objects    of    Legislation    may    be 
applied   to   the  following  matters;  which,  if  formed   into 


?C)3  OP    LAW;  [Led.  VII 

definitions,  maxims,  declarations,  laws  &c  with  that  cau- 
tion which  wise  heads,  cultivated  minds,  and  virtuous 
hearts  might  bestow,  could  not  fail  to  constitute  a  code  of 
jurisprudence  which,  if  not  perfect,  might  at  least  enable 
nations,  in  time,  to  make  their  own  nearly  so. 
The  divisions  of  the  Code  may  relate  to 

I.  A  clear  and  definite  Terminology  of  the  entire  pro- 
posed system  of  jurisprudence. 

II.  To  matters  establishing  the  Political  State,  or  Con- 
stitutional Laws. 

III.  To  matters  establishing  the  Constitutional  Proce- 
dure, or  the  means  of  conducting  business  in  all  the  politi- 
cal assemblies  of  the  State,  so  as  to  attain,  in  the  most  or- 
derly and  efficient  manner,  the  end  of  their  institution; 
the  whole  of  which  is  embraced  under  the  name  of  Politi- 
cal Tactics. 

IV.  To  matters  promotive  of  Private  Morals. 

V.  To  matters  promotive  of  Religion  in  general. 

VI.  To  matters  declarative  and  preventive  of  Crimes 
mala  i?i  se,  through  the  medium  of  penal  sanctions. 

VII.  To  matters  pointing  out,  and  preventive  of  Offen- 
ces mala  prohibit  a,  through  the  medium  of  penal  sanctions. 

VIII.  To  matters  promotive  of  obedience  to  laws, 
through  the  medium  of  remunerative  sanctions. 

IX.  To  matters  regulating  Criminal  Procedure,  from  its 
inception  to  its  complete  termination. 

X.  To  matters  of  Civil  or  distributive  justice  in  regard 
to  property  in  things  corporeal,  whether  moveable  or  im- 
moveable; and  to  the  voluntary  and  involuntary  acquisi- 
tion and  disposal  thereof.*** 

*  It  is  proper  here  to  apprise  the  student  that,  under  the  English  and 
American  law,  the  distinction  between  things  corporeal  and  incorporeal  is 
not  founded  (as  it  is  in  nature)  on  the  tangible  and  visible  quality  of  the 
one,  and  the  mere  notional  or  mental  existence  of  the  other.  Thus  land, 
money,  houses,  ships  are  in  reality  corporeal;  sovereignty,  the  right  under 
a  covenant  or  promise,  a  right  of  way,  &c.  are  incorporeal.     This  is  the 


IjUCt  VII.]  AND     ITS    GENERAL     PROPERTIES.  293 

XI.  To  matters  of  Civil  or  distributive  justice  in  re- 
gard to  property  in  things  incorporeal,  whether  affecting 
moveable  or  immoveable  things;  and  to  the  voluntary  and 
involuntary  acquisition  and  disposal  thereof. 

XII.  To  matters  regulating  Civil  Procedure,  from  its 
inception  to  its  complete  termination,  as  far  as  it  respects 
things  corporeal,  moveable  and  immoveable. 

XIII.  To  matters  regulating  Civil  Procedure,  from  its 
inception  to  its  complete  termination,  as  far  as  it  respects 
things  incorporeal,  moveable  and  immoveable. 

XIV.  To  matters  of  Civil  distributive  justice  in  rela- 
tion to  things  extra  palrimonium,  but  in  which  there 
may  still  be  enjoyed  valuable  rights;  as  in  the  Ocean,  Air, 
Public  Rivers,  Liberty,  Reputation  &c.  &c.  and  which  do 
not  come  within  the  terms'  of  any  just  definition  of  pro- 
perty.* 

XV.  To  matters  of  Finance  and  Publick  Expenditure. 

XVI.  To  matters  regulating  the  communion  between  the 
Nation  and  other  States  and  Nations. 

A  philosophical  legislator  will  have  respect  to  a  variety 
of  rules  which  have  been  ascertained  by  the  experience  of 
ages,  or  by  the  ti  priori  reasonings  of  the  wise  and  re- 
flecting of  various  nations.  These  constitute  the  science 
of  legislation,  and  come  under  the  head  of  the  external 
properties  of  law;  some  of  the  more  important  of  which 
are  as  follows. 

1.   Laws  should  be  of  a  legal  nature. 

The  violations  of  this  rule  are  lobe  found  in  some  sump- 
tuary laws;  in  those  relating  to  mere  private  ethics;  and  in 

distinction  made  by  the  Roman  law,  and  pervades  all  the  codes  built  on 
that  system.  The  English  law,  on  the  other  hand,  ranks  land,  houses  and 
other  unmoveable  property  as  corporeal;  but  furniture,  money,  ships,  cat- 
tle, and  such  like  moveables,  are  classed  neither  with  corporeals  nor  incor- 
poreals. 

*  Property  may  perhaps  be  defined  an  exclusive  right  to  some  external 
thing,  corporeal  or  incorporeal,  moveable  or  immoveable. 


294  OF    LAW  .  [Lect.  VII 

a  great  number  of  frivolous  regulations  to  be  found  in  the 
jurisprudence  of  most  countries;  such  as  the  law  that  the 
Ephori  should  wear  beards;  that  the  groom  and  his  bride 
should  eat  a  quince  together;  that  on  the  emancipation 
of  slaves,  small  bundles  of  hay  should  be  thrown  over 
them,  &c. 

2.  Laws  should  have  a  possible,  reasonable  and  useful 
object. 

This  rule  needs  no  comment;  the  first  and  second  parts 
of  it  are  obvious;  the  third  means  that  general  utility 
should  characterize  all  laws,  and  not  mere  individual  good. 

3.  Laws  should  not  be  needlessly  multiplied,  but  be  as 
few  in  number  as  the  genius  of  the  government,  and  the 
state  of  society  will  admit. 

This  was  a  very  favourite  maxim  with  many  -ancient 
legislators.  As  the  rule  is  expressed,  there  appears  to  be 
no  sound  objection  to  it;  but  it  is  generally  so  worded 
as  to  convey  the  idea  that  a  paucity  of  laws  is  a  positive 
good,  and  the  reverse,  a  necessary  evil.  If  the  first  and 
second  rules  be  observed,  the  sound  doctrine  then  would  be, 
'the  more  law  the  more  liberty,'  and  legislation  could  hardly 
be  too  minute.  The  learned  Harrington,  however,  appears 
to  be  very  unfriendly  to  numerous  laws.  'Rome  was  best 
governed,'  says  he,  'under  those  of  the  twelve  tables;  and 
according  to  Tacitus,  plurimas  leges,  corruptissima  re- 
publicci.  But  you  will  be  told  that  when  the  laws  are  hw, 
they  leave  much  to  arbitrary  power:  but  where  there  be 
many,  the)r  leave  more:  the  laws  in  this  case,  as  Justinian 
and  the  best  lawyers  think,  are  as  litigious  as  the  suitors. 
Solon  made  but  few  laws;  Lycurgus  fewer;  and  common- 
wealths have  the  fewest,  at  this  day,  of  all  governments.'* 
This  view  of  the  subject  however,  is,  we  think,  more 
plausible  than  sound. 

*  Oceana,  56.     System  of  Politics,  chap.  ix. 


Lect.  VII.]  AND    ITS    GENERAL    PROPERTIES.  295 

4.  Laws  should  speak  a  general  language,  and  not  at- 
tempt to  comprehend  all  possible  cases. 

As  a  general  rule,  this  is  very  sound;  no  enumeration 
of  the  objects  of  the  law  can  be  sufficiently  comprehensive 
to  embrace  all  the  cases  that  may  fall  within  its  spirit; 
and,  consequently,  enumeration  should  not  be  attempted 
beyond  what  may  be  necessary  fully  to  exemplify  and  il- 
lustrate the  law.  The  more  minute  is  the  specification, 
the  stronger  is  the  reason  for  supposing  the  legislator  in- 
tended to  exclude  all  non-enumerated  cases.  Laws,  how- 
ever, are  sometimes  very  minute  in  their  enumeration, 
and  still  conclude  with  general  words,  so  as  to  embrace 
all  cases  within  its  spirit. 

5.  Laws  should  not  only  be  general  in  their  phraseology, 
but  universal  in  their  operation. 

This  rule  is  also  to  be  received  with  some  caution.  Wise 
legislators  will,  indeed,  guard  against  granting  privileges 
except  for  very  special  reasons,  and  will  endeavour  to  fol- 
low Solon's  rule,  which  was,  to  make  no  law  that  did  not 
comprehend  all  his  subjects  indifferently. 

6.  Laws  should  be  grounded  on  some  fact  which  has 
happened,  with  a  view  to  the  prevention  of  its  recurrence; 
for  if  none  such  has  occurred,  and  i?  not  likely  to  occur,  it 
is  not  wise  to  make  a  law  to  meet  its  possible  contingency. 

This  rule,  it  appears  to  me,  is  rather  fanciful  than  solid. 
It  may  be  sound  as  to  penal  law3  against  crimes  of  a  very 
odious  nature.  Hence,  Solon  justified  the  omission  in  his 
code,  of  a  law  against  parricide. 

7.  Laws  should  never  attempt  to  secure  their  continu- 
ance independently  of  the  power  in  which  they  originated. 
In  this  case  the.  maxim  must  ever  be,  unumquodque  dis- 
solvitur  eo  modo  quo  colligatur. 

All  legislative  or  supreme  power  must  be  co-equal,  and 
none  is  competent  to  bind  itself,  much  less  others  to  a  fixed 
observance  of  laws.     The  right  of  repeal  and  modification  is 


296  OF    LAW,    AND    ITS    GENERAL    PROPERTIES.     [Lect.  VII. 

inherent  and  unalienable.  In  modern  times,  however,  as 
well  as  in  ancient,  the  devices  have  been  numerous  where- 
by the  legislature  would  impose  restraints  on  itself  and  on 
other  legislators,  with  a  view  of  placing  laws  beyond  the 
reach  of  the  power  whence  they  emanated.  These  are 
deemed  no  less  unwise  than  idle,  and  indeed  impracticable. 

8.  Laws  should  have  respect  to  the  moral  and  physical 
nature  of  man  in  general,  and  more  especially  to  the  par- 
ticular character  of  those  to  whom  they  are  directed. 

9.  Laws  should  vary  with  the  great  and  radical  changes 
in  the  genius  and  disposition  of  the  people,  brought  about 
by  the  gradual  developement  of  the  energies  of  a  nation. 

10.  Laws  should  not  be  venerated  merely  for  their  anti- 
quity. A  wholesome  jealousy  of  innovation,  and  respect 
for  existing  laws,  are  nevertheless  to  be  encouraged. 

The  three  last  mentioned  rules  need  not  be  commented 
en  at  this  time,  as  I  shall  have  occasion  to  allude  to  them 
in  the  ensuing;  lecture. 


LECTURE  VIII. 


OP  THE  LAWS  OF  NATURE  APPLIED  TO  MAN  INDIVIDU- 
ALLY, WHETHER  IN  A  STATE  OP  NATURE,  OR  OP  SOCIE- 
TY AND  GOVERNMENT. 

(].)  Introductory       In  the  preceding  lectures  we  have  ge- 
remarks.  nerally  been  contented  with  stating  some 

of  the  most  useful  and  approved  notions  of  the  Law  of 
Nature,  without  tediously  dwelling  on  the  many  subtile 
questions  with  which  the  casuists  have  embarrassed  the 
topicks  of  its  origin,  nature  and  sanctions. 

In  the  present  lecture  we  shall  advert  to  most  of  these 
points,  not  with  the  view  of  discussing  them  with  metaphy- 
sical  minuteness,   but  of  endeavouring  to   combine,  in  as 
small  a  compass  as  may  be  consistent  with  perspicuity,  all 
that  is  really  valuable  in  these  long  vexed  questions.   These 
controversial   ethicks,   if  not  intrinsically   as  valuable    as 
many   of  the  learned   jurists    of  former  times  supposed, 
have  still  proved   highly  beneficial;  as  it  may  happen  that 
those  who  are  in  search  of  precious  ore,  may  gain  more  by 
repeatedly  turning  up,  and  thereby  enriching,  the  sterile  soil 
in  which  it  may  be  hidden,  than  by  the  discovery  of  what 
they  seek.      The  zealous  student  of  these  topicks  will  find 
much  to  awaken  attention,  much  that  will  fashion  his  mind 
to  close  and   abstract  reasoning,  and  discipline  it  to  severe 
and  patient  investigation;  and  it  is  certain  that  those  most 
distinguished  in  the  science  of  ethicks,  and  of  natural  and 
38 


293  OP   THE    LAWS    OF    NATURE.  [Lect.  VIIl 

international  law,  have  addicted  themselves  to  these  nice 
and   abstract  disquisitions.      Writers  on  these  subjects  are 
indeed,  at  this  day,  more  systematick,  less  metaphysical, 
less  pedantically  learned  on  most  points,  than  Grotius  and 
Puffendorf,  Cumberland,  Wolfius,  and   many  others:   but  it 
by  no  means  follows  that  their  works  have  superseded  the 
writings   of  these  great   fathers  of  the  law  of  nature  and 
nations.     The  successors  of  the  erudite  Grotius,   and  the 
i    metaphysical    Puffendorf  and   Cumberland,  have  enriched 
\  themselves  by  a  careful  study  of  ihe  writings  of  these  very 
I  learned    men,   ar.d    have   been  enabled  to  clothe  their  own 
t  productions   in    more    attractive    attire.      But,  after  all,  it 
'  must  be  confessed  that  no  modern  treatises  on   ethical  ju- 
risprudence, and    the   principles  of  international    law,  can 
compare  in   solid    usefulness  with  the  elaborate  works  of  k 
the  philosophers  we  have  just  named. 

The  science  of  International  Law,  as  distinguished  from 
what  has  been  called  the  necessary  and  eternal  law  of  nations, 
which  indeed,  in  one  sense,  is  rather  ethicks  than   law,  is 
almost  wholly  of  modern  structure.    The  treatise  lDe  Jure 
Belli  ac  racis'  was  the  first  attempt   at   pointing  out  the 
delicate    lines  which  separate  the   laws  of  nature  from  the 
customary,   voluntary    and    conventional    laws   of  nations. 
This  work  of  the  immortal  Grotius  is  far  more  expository, 
and  consequently  more  authoritative,  than  those  of  his  pre- 
decessors; and   it  is  a  little  remarkable  that,  after  so  ad- 
mired an  example,  his  distinguished  successor,  Puffendorf, 
should  have  relapsed   into  all  those  extremely  refined  ethi- 
cal disquisitions  which  confound   the  morals  of  the  school- 
men with  the  positive,  diplomatic  and  natural  laws  and  in- 
stitutions of  nations. 

In  some  of  the  preceding  lectures  I  have  spoken  of  man 
in  a  state  of  nature;  of  the  rights  of  nature;  and  inciden- 
tally of  the  laws  of  nature.  In  the  present  lecture  it  is 
my  purpose  to  state  more  at  large  the  nature,  origin,  and 


Lect   VIIT  ]  OP    THE    LAWS    OF    NATURE.  299 

general  principles  of  that  great  code  which  explains  and 
defines  the  reciprocal  rights  and  obligations  of  men  and 
of  nations. 

(2.)  Definitions  of  The  definitions  of  the  law  of  nature 
the  law  of  nature  have  been  extremely  various.  We  shall 
state  some  of  these  in  substance,  though  not  in  their  lan- 
guage, as  the  former  will  sufficiently  instruct  you  in  the 
opinions  of  the  various  writers. 

Burlamaqu?,  a  sensible  author,  speaks  of  the  laws  of  na- 
ture as  consisting  of  those  rules  which  nature  alone  pre- 
scribes to  man,  with  a  view  to  his  true  and  enduring  happi- 
ness. These  rules,  as  a  system,  are  imposed  by  God  on 
man,  and  constitute  the  science  called  the  law  of  nature 
and  of  nations,  embracing  the  fundamental  principles  of 
moral   philosophy,    universal    jurisprudence,   and    general 

politicks. 

Puffendorf  speaks  of  this  law  as  that  universal  rule  of 
human  actions,  to  which  every  man  is  obliged  to  conform, 
as  he  is  a  reasonable  creature.*  Ruiherforth  says  that  the 
laws  of  nature  are  those  rules  of  moral  conduct  which 
mankind,  in  their  intercourse  with  each  other,  are  obliged 
to  observe,  from  their  very  nature  and  constitution. t  The 
eloquent  Sir  James  Mackintosh,  from  whose  language  we 
are  never  inclined  unnecessarily  to  depart,  says,  in  sub- 
stance, that  the  law  of  nature  and  nations  teaches  the  du- 
ties and  rights  of  individuals  and  of  states;  the  former  em- 
bracing private  ethicks,  as  far  as  they  can  be  reduced  to 
fixed  and  general  rules;  and  the  latter,  those  general  prin- 
ciples of  politics  and  international  law,  which  the  wisdom  of 
the  lawgiver  adapts  to  the  peculiar  situation  of  his  country, 
and  which  the  skill  of  statesmen  applies  to  the  more  fluctua- 
ting circumstances  which  affect  its  welfare  and  safety.  J 

*  Puff,  book  2,  ch.  3,  sec.  1.      t  1  Ruth  Inst.  1,  22.      \  Mack.  Intro.  3,  4. 


300  OF   THE    LAWS    OP    NATURE.  [Lect.VlII. 

Montesquieu,  who  has  but  a  word  on  the  extensive  sub- 
ject of  the  Jus  Naturae,  remarks,  that  'prior  to  all  laws, 
are  those  of  nature,  so  called  because  they  derive  their 
force  entirely  from  our  frame  and  being.  In  order  to  have 
a  perfect  knowledge  of  these  laws,  we  must  consider  man 
before  the  establishment  of  society:  the  laws  received  in 
such  a  state,  would  be  the  laws  of  nature.'* 

The  law  of  nature,  says  Mr  Dagge,  is  the  'faculty'  that 
dictates  those  moral  duties  which  every  intelligent  being  is 
obliged  to  observe,  under  an  unknown  penalty  for  trans- 
gressing the  presumed  will  of  that  Supreme  Being  from 
whom  he  derives  his  rational  powers,  t  Grotius  defines  this 
law  to  be  the  dictate  of  right  reason,  whereby  any  action, 
from  its  conformity  to,  or  disagreement  with  the  nature  of 
man,  is  either  morally  good  or  bad;  and,  as  such,  is  either 
enjoined  or  prohibited  by  God,  the  author  and  preserver 
of  nature.  Lord  Coke,  in  alluding  to  this  great  system 
of  rational  and  immutable  law,  says  that  it  is  that  which 
God,  at  the  'time  of  the  creation  of  man,  infused  into  his 
heart,  for  his  preservation  and  direction;  which  is  lex  scter- 
?ia,  the  eternal  law,  the  moral  law,  called  also  the  law  of 
nature;  and  by  this  law,  written  with  the  finger  of  God  on 
the  heart  of  man,  were  the  people  of  God  a  long  time  go- 
verned, before  that  law  was  written  by  Moses,  who  was  the 
first  writer  of  law  in  the  world.!  Most  of  the  foregoing 
definitions,  or  rather  explanations,  are  liable  to  objection,  as 
indeed  is  the  case  with  most  others  which  might  be  men- 
tioned. Some  of  these  rather  explain  the  operation  of  this 
law,  than  its  essential  nature:  others,  again,  rather  disclose 
the  medium  of  its  communication  to  man,  than  its  qualities 
or  its  origin;  and  some  of  them  rest  on  the  assumption  that 
there  are  actions  essentially  right  or  wrong,  independently 
of  all  law.       The  definitions  of  Grotius  and  Burlamaqui 

*  Sp.  of  Laws,  bk.  1,  ch.  2.  f  Dagge's  Crim.  Law,  82. 

\  1  Coke,  Calvin's  case,  -5. 


Lect  VIII.]  OF    THE    LAWS    OF    NATURE.  301 

are  the  least  objectionable,  as  they  show  the  universality  of 
this  law,  that  is,  that  it  applies  to  all  reasonable  beings; 
the  author  of  the  law,  viz.  God,  who  alone  was  competent 
to  bind  all  men  by  one  rule  of  action;  and,  lastly,  the  only 
mode  in  which  this  law  is  ascertained,  viz.  through  the  hu- 
man heart  and  understanding,  since,  independently  of  all 
revelation  and  divine  positive  law,  the  conscience  and  rea- 
son of  man  are  alone  sufficient  to  discover  every  dictate  of 
the  law  of  nature.  The  expression,  Maws  of  nature,'  has 
been  often  applied  to  matter  as  well  as  to  mind;  but  the 
foregoing  definitions  very  properly  confine  the  subject  of 
these  laws  to  the  moral  conduct  of  man;  for  the  expres- 
sion, 'physical  laws,'  is  more  suitable  to  the  laws  which 
regulate  matter,  and  thus  distinguishes  between  those  two 
great  systems  of  rules,  the  one  applicable  to  mind,  the 
other  to  mere  matter. 

Law  indeed,  in  its  most  comprehensive  sense,  may  be 
extended  to  other  entities  than  moral  agents;  and  we  have 
so  defined  it  in  the  preceding  lecture.  Stili,  however, 
when  we  come  to  speak  of  any  particular  system  of  laws, 
we  should  have  an  appropriate  expression.  Thus  the  term, 
'natural  law,'  should  not  be  applied  both  to  the  conduct  of 
moral  agents,  and  the  rules  prescribed  by  Deity  in  regard 
to  matter.  Both  systems  are  natural  indeed;  but  the  ex- 
pression, 'physical  laws,'  when  applied  to  matter,  not  only 
prevents  confusion,  but  keeps  asunder  things  which  are  es- 
sentially different.  We  cannot,  however,  concur  with  Mr 
Christian,  when  he  would  wholly  exclude  the  use  of  the 
word  law,  as  applied  to  matter.  The  difficulty  of  which 
he  complains,  may,  we  apprehend,  be  removed  in  the  man- 
ner just  suggested.  No  confusion  can  result  from  applying 
the  general  word,  law,  to  both  moral  and  physical  actions 
and  entities;  but  there  is,  as  before  mentioned,  an  impro- 
priety in  permitting  the  same  expression,  'natural  law,'  to 
apply  to  moral  actions,  and  also  those  principles  which  re- 


302  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

o-tilnte  the  existence,  and  various  mutations  of  matter.  Mr 
Christian  was,  no  doubt,  impressed  with  this  impropriety, 
but  has  gone  unnecessarily  far  in  restricting  the  word  'law* 
to  the  actions  of  man  as  a  moral  agent.  This  sense  of  the 
word,  says  Mr  Christian,  'is  perhaps  the  only  one  in 
which  it  can  be  strictly  used;  for  in  all  cases  where  it  is 
not  applied  to  human  conduct,  it  may  be  considered  as  a 
metaphor.  We  say,  indeed,  that  it  is  a  law  of  motion 
that  a  body  put  in  motion  in  vacuo,  must  for  ever  go  for- 
ward in  a  straight  line,  with  the  same  velocity;  but  we 
might  as  well  have  used  the  word  property  or  quality.' 
He  further  adds,  that  'when  law  is  applied  to  any  other  ob- 
ject than  man,  it  ceases  to  contain  two  of  its  essential  in- 
gredient ideas,  viz.  disobedience  and  punishment."" 

The  difference  between  us  is  scarcely  worthy  of  further 
remark.  We  know,  however,  that  the  material  universe 
is  regulated  by  denned  and  fixed  laws  or  rules,  on  the  ob- 
servance of  which  its  perfection,  and,  in  many  instances, 
its  existence  depend:  these  are  the  primeval  laws  prescribed 
by  Deity.  Every  rule  thus  prescribed  to  matter,  whether 
it  relates  to  its  existence,  motion,  rest,  or  various  transfor- 
mations, must  be  observed;  otherwise,  the  res  subjecta 
ceases  to  exist,  or  it  assumes  some  other  form  than  the  one 
originally  designed.  These  rules  of  matter,  we  know,  are 
not  invariably  adhered  to,  and  the  consequence  is,  that 
Deity  has  as  invariably  impressed  on  such  departure,  im- 
perfection, decay,  and  perhaps  ruin,  as  he  has  unhappiness, 
punishment  or  death  on  man,  when  he  violates  the  moral 
laws  of  his  nature.  All  physical  laws  have  their  peculiar 
sanctions,  which,  though  they  may  not  be  called  punish- 
ments, are  as  fatal  to  the  harmony  and  perfection  of  the 
world  of  matter,  as  are  the  correspondent  penal  sanctions 
to  the  world  of  mind,  or  of  moral  intelligence:  both  systems 

•  1  Chris.  Black.  Comment. 


Leot.  VIII.]  OP    THE    LAWS    OP    NATURE.  303 

of  rules  must  be  observed  with  equal  strictness.  These 
rules  are  consequently  laws,  not  indeed  of  the  same  spe- 
cies, but  belonging  to  the  genus  law;  and  these  rules, 
when  denominated  laws,  are  not,  we  think,  so  called  in  a 
metaphorical  sense  only.  But  it  is  unnecessary  to  insist 
longer  on  a  question  of  terms. 
(3  )  Whether  the       From   what  has  been  said  we  at  once 

law    of    nature    be  see    trie    impropriety   of    extending,    (as 
common  to  Man  and 

Brute,  and  how  far  it  some   have   had    the   pedantry  to  do)    this 
is   common   to    God  law  of  nature  to  brutes, 
and  Man.  When  the  Roman   lawyers  defined  the 

law  of  nature  to  be  that  law  which  nature  teaches  to  all 
living  creatures, — Jus  naturale  est,  quod  natura  omnia 
aniotalia  docuit;  nam  jus  istud  non  humani  generis 
proprium  est,  sed  omnium,  animalium  quae  in  coelo, 
quae  in  mari,  nascuntur,* — they  intended  to  describe 
something  very  different  from  that  lex  naturae  with  which 
treatises  on  ethics  and  jurisprudence  have  to  do.  The  de- 
finition of  Ulpian  answers  only  to  those  instincts  which  are 
common  to  man  and  brute,  and  yet  which  operate  very  dif- 
ferently on  the  two,  being  modified  in  man  by  the  voice  of 
conscience,  or  the  moral  sense,  and  by  reason,  or,  perhaps, 
by  the  reasoning  faculty  only.  Bui  Puffendorf  thinks  that 
the  general  consent  of  the  learned  has  discarded  the  no- 
tion of  this  common  law  of  animate  beings,  as  it  is  impos- 
sible to  conceive  how  a  creature  should  be  capable  of  such 
law,  and  yet  incapable  of  reasoning.!  What  is  done  by 
brutes,  therefore,  in  common  with  man,  is  done  by  them 
out  of  simple  inclination,  that  is,  from  instinctive  impulses; 
but  by  man,  with  a  sense  of  obligation  or  of  right  super- 
added; and  hence  arise  moral  sanction  and  accountability. 
It  is,  we  suppose,  from  a  confusion  of  the  very  distinct 
meanings  comprehended  in  this   phrase,  that  this  absurd 

*  Dig.  1, 1,  1,  3;  Inst.  lib.  1,  Tit.  2.  sec.  1.     f  Puff-  book  2,  ch.  3;  sec.  2. 


304  GF    THE    LAWS    OF    NATURE  [Lect.  VIII. 

notion  arose,  of  beasts  being  subject  to  the  law  of  nature ; 
a  notion  which   its  friends   have   endeavoured   to   support 
from  some  passages  of  scripture,*  and  which   Puffendorf 
has  been  at  some  pains,  unnecessarily  we  think,  to  confute. 
Lord  Bolingbroke,  who  had  no  affection  for  the  Holy  Scrip- 
tures, and  still  less  for  Rabbinical  learning,  contends  from 
these  various  passages,  that  the  Jews  made  beasts  accounta- 
ble like  moral  agents;  and  that  the  Mosaic  history  and  law 
sustain   the  opinion,  that  the  law  of  nature  is  common  to 
man  and  beast;  and  he  concludes  with  remarking  that  he 
'knows  nothing  more  absurd  than  this,  except  a  custom  at 
Athens,  but  which  was  less  cruel   than  that  of  the  Jews, 
viz.  that  the  weapons  by  which  a  murder  had  been  commit- 
ted, were  brought  into  court,  as  if  they  too  were  liable  to 
punishment;  and  the  statue  which  had  killed  a  man  by  its 
fall,  was,  by  a  solemn  sentence  uf  that  wise  people  the  Tha- 
sii,  cast  into  the  seal't  In  reply  to  these  sarcastic  remarks,  it 
is  sufficient  to  observe  that,  if  the  scriptures  of  the  Jews  be 
construed  with   the  same  critical  justice  as  the  laws  and 
customs  of  other  countries  are,  the  passages  relied  on,  and 
now  referred  to,  do  not  necessarily  sustain  the  interpreta- 
tion given  to  them  by  these  critics.     No  one  will  seriously 
contend    that   the    Thasii    supposed    that    the    statue    had 
committed  any  crime,  or  that  it  was  conscious  of  any  pun- 
ishment in    being   cast  into   the    sea.       So,   likewise,   the 
law  of  deodands,  so  prevalent  in  most  countries,  and  even, 
at  the  present  day,  in  some  of  the  American  states,  has  ne- 
ver been  supposed   by  any  one  to  be  based  on  the  idea  that 
the  chattel  which  had  occasioned  death,  was  forfeited  to  the 
state  on  account  of  any   fault  or  responsibility  in  itself. 
And  yet  it  would  be  as  just  to   accuse  the  Thasians  and 
the  people  of  this  country,  to  whom  the  law  of  deodands 
is  not  unknown  in  practice,  of  believing  that  inert  matter 

*  Gen.  9,  5;  Levit.  18,  23,  and  20,  15,  16;  Deut.  13,  15,  16;  Exod.  21,  2S 
j  7  vol.  Bolingb.  Works,  315;  Taylor's  Civil  Law,  116. 


Lect.  VIII.J  op    THE    LAWS    OF    NATURE.  305 

is  morally  accountable,  as  to  impute  to  the  Jews  a  belief 
that  the  beast  which  had  killed  a  man,  and  had  been  stoned 
to  death,  was  thus  dealt  with  as  a  punishment  to  it.     The 
truth  is,  that  all  these  laws  and  customs  grow  out  of  some 
peculiar  reasons  of  policy,  wholly  referribie  to  their  moral 
influence  on  man;  and  have  no  regard  whatever  to  any  sup- 
posed moral  effect  either  on  brutes  or  inert  matter.     Philo- 
Juclseus,  Maimonides,  Puffendorf,  Taylor,  the  learned  Sel- 
den,  and  many  others,   who  have  perhaps  spent  too  much 
time  and  research  on  this  point,  agree  that  the  sole  object 
of  these  laws  and  institutions  was  to  create  a  greater  abhor- 
rence of  crime  in  all  its  forms,  and  a  more  lively  respect 
for  human  life;   hence,  that  the   brute  which   had  killed  a 
man,  was  not  deprived  of  life  ad  pcenam  ab  ilia  exigendam, 
but   ad  poenam  exigendam  a  domino;  and  in  the  case  of 
bestiality,  lest,  among  other  reasons,  'the  beast  remaining 
alive,  should  keep  up  the  scandalous  remembrance  of  the 
human    offender  who  had  suffered    punishment.'      These, 
and  numerous  other  reasons  would  have  sufficiently  weigh- 
ed with  Lord  Bolingbroke,  had  he  been  inclined  to  extend 
to  the  Mosaic  and  Jewish   institutions,  that  same  measure 
of  liberal  explanation,  which  he  so  well  knew  how  to  ac- 
cord in  ail  other   cases.* 

#  Vide  Selden  De  Jure  naturali  et  Gentium,  juxta  disciplinam  Ebmorum, 
iib.  1,  cap.  5.  Selden,  whom  Grotius  calls  the  'glory  of  England,'  and 
who  is  always  quoted  under  the  name  of  the  learned  Selden,  was  born  in 
108  t.  He  was  not  only  an  accomplished  lawyer,  but  a  ripe  scholar,  as  is 
manifested  by  many  works  of  wonderful  research,  of  which  the  following 
are  the  principal.  The  'Analecton  Anglo-Britannicon,'  'England's  Epinomis,' 
'Jani  Anglorum  Facies  Altera,'  'Titles  of  Honour,'  'De  Diis  Syris,"History 
of  Tithes,'  'Marmora  Arundeliana,'  'De  Successionihus  in  bona  defuncti 
ad  leges  Ebraorum,'  'De  successione  in  Pontificatum  Ebrajorum,'  'Mare 
Clausum,  scu  Dominio  Maris,'  'Eutychii  iEgyptii  Oirgines  EcclesiaV'Uxor 
Ebraica,'  'De  Anno  Civili  Veteris  Ecclesiaj,'  'De  Synedriis  Veterum  Ebrae- 
orum,'  and  'Vindicia?  de  Scriptionc  Maris  Clausi.'  He  is  also  advantageous- 
ly known  by  his  annotation  on  'Fleta,'  and  the  work  entitled  'Table  Talk,' 
which  was  a  collection  of  his  sayings  made  by  a  friend,  and  published  af- 
39 


306  OF    THE    LAWS    OP    NATURE.  [Lect.  VH1. 

Another  curious  topick  of  inquiry  among  casuistical 
jurisprudents  is,  how  far  the  law  of  nature  can  he  consider- 
ed as  common  to  God  and  his  creature,  man;  a  question 
which,  in  one  shape  or  other,  in  religion  as  well  as  in  na- 
tural law,  has  not  been  without  considerable  discussion. 
The  main  difficulty  involved  in  this  point,  seems  to  be  this. 
One  party  places  the  fountain  of  all  natural  law  in  the  di- 
vine will  alone,  which,  according  to  their  system,  may  or- 
dain or  abrogate  this  law  at  pleasure.  In  this  system,  God 
is  conceived  to  be  bound  by  no  laws  of  his  own,  inasmuch 
as  he  can  thus  change  them  in  fact  by  any  volition,  how- 
ever contrary  to  the  present  moral  arrangement  of  things. 
The  other  party  contends  for  a  natural,  eternal  and  immu- 
table fitness  or  decorum  of  tilings,  which  they  say  must  be 
essentially  consonant  to,  and  hinding  on  a  being  of  purity 
and  goodness,  and  from  which  there  is  not  a  possibility 
that  he  should  ever  depart.  That  if  we  ever  conceive  him 
capable  of  enjoining  rapine,  murder,  and  a  dishonest  life, 
we  must  conceive  him,  at  the  same  time,  willing  into  exis- 
tence a  being  quite  opposite  to  that  which  he  has  cre- 
ated; and  having  created  man  as  he  is,  it  is  of  necessity 
that  he  wills  the  rules  which  we  at  present  take  to  be  the 
laws  of  nature.  Hence  they  deduce  a  kind  of  obligation 
on  God  to  observe  his  own  laws;  and  in  this  sense  they 
say  that  the  law  of  nature  is  common  to  God  and  man. 
This  party  is  sub-divided  into  two  classes,  the  first  denying 
the  power  of  Deity  over  these  laws,  the  other  seeming  to 
admit  the  original  power,  but  with  the  modification  that, 
having  established  the  law,  he  is  obliged  to  observe  it,  and 

ter  his  death.  We  have  noted  the  writings  of  this  learned  man,  that  stu- 
dents may  see  how  a  well  directed  and  persevering  industry,  not  only  mas- 
tered the  science  of  English  jurisprudence,  but  all  the  minute  learning  of 
the  institutions,  laws  and  customs  of  the  Jews,  which  chiefly  lay  hid  in 
the  ponderous,  and  forbidding  volumes  of  the  Ra>  binical  writers  But 
his  learning  was  still  more  various,  as  is  seen  in  his  notes  on  the  Arunde- 
lian  marbles,  his  Analecton  and  Epinomis. 


Lect.  VIII.]  OF    THE    LAWS    OP    NATURE.  307 

cannot  abrogate  it.  The  first  class  contend  for  the  im- 
mutability of  the  law  of  nature,  because,  as  they  say,  it  is 
so  founded  in  the  essential  holiness  and  justice  of  God,  as 
to  represent  a  perfect  image  or  copy  of  these  attributes, 
and  must  therefore  be  as  eternal  as  they.  The  second 
class  contend,  that  although  God  is  the  author  of  natural 
law,  yet  having,  in  his  pleasure,  created  man,  with  whose 
nature  that  law  agrees,  the  latter  becomes  therefore  obliga- 
tory on  God.  Whether  there  is  much  utility  in  this  inqui- 
ry, we  will  not  say.  Our  object,  however,  is  only  to  state 
the  point,  and  some  of  the  views  which  have  at  different 
times  been  entertained  concerning  it;  not  to  enter  at  laru-e 
into  the  question,  or  seek  to  clear  it  of  the  difficulties  which 
environ  it. 

In  several  of  the  preceding  lectures  we  leaned  towards 
the  opinion,  that  there  is  in  man  an  innate  admiration  of 
virtue  and  truth,  independently  of  any  immediate  refer- 
ence to  their  convenience  to  the  purposes  and  happiness 
of  life.  With  that  idea  may  very  naturally  be  connected 
another,  viz.  that  we  should  feel  within  ourselves  an  im- 
pulse, which  might  be  termed  obligation,  towards  the  prac- 
tice of  viitue,.  and  the  discovery  of  its  consequent  happi- 
ness, without  any  hope  of  reward,  or  fear  of  punishment. 
This  we  call  an  internal  obligation,  in  contradistinction  to 
that  which  is  external,  and  which  is  derived  from  our  hold- 
ing the  laws  of  nature  not  only  to  be  approved  by  God,  but 
sanctioned  by  him  with  penalties,  either  in  this  life  or  a 
future.  The  internal  obligation  would  lead  us,  if  not  by  a 
necessary  law,  certainly  by  a  principle  of  our  nature,  to 
love  this  virtue  and  this  truth;  whilst  the  external  oblio-a- 
tion  would  make  us  fear  to  violate  them.  Now,  let  us  pur- 
sue this  subject  of  internal  and  external  obligation,  and  see 
what  connexion  it  has  with  the  point  under  consideration. 
The  law  of  nature,  we  remember,  is  said  to  be  a  body  of 
rules  convenient  to  human  conduct,  and  enforced  by  the 


30S  OP    THE    LAWS    OP    NATURE.  [Lect.  VIII. 

God  of  nature  by  penalties;   for  whatever  may  be  the  no- 
tion of  some  as   to  the  natural  fitness  of  things  being  a 
source  of  obligation,  a  penally  is  declared  by  all  writers  to 
be  an  essential  quality  in  all  laws  addressed  to  moral  agents. 
If  we  then  assume  this  idea  of  law,  it  cannot  be  predicated, 
of  it  that  it  is  common  to  God  and  man;  since  we  can,  with 
no  propriety  or  decenc}*,  suppose  him  to  be  operated  on  by 
any  thing  in  the  nature  of  an  external  obligation,  or  pen- 
alty.     God,  therefore,  must  be  independent  of  all  external 
obligation.      But  the  question  yet  remains,   is  he  indepen- 
dent  likewise  of    all   ii.tcri.al   obligation?      Can    he,  by  a 
mere   volition,   change   all   the   rules   of  duty  which   now 
subsist,  and  command  ill  for  good,  injustice  for  equity,  ha- 
tred  for  benevolence?  for  all  this  seems  to  be  implied  in 
the  notion  of  those  who  contend   that  all  natural  law  ori- 
ginates merely  in   the  Divine  will,  independently  of  any 
natural   fitness   of  things,   and   any  absolute  and   essential 
conformity  of  natural  law  to  the  very  nature  and  essence  of 
Deity.      We  may  avoid,  if  we  choose,  to  pronounce  God 
under  a  necessity  to  observe  the  rules  which  arise  out  of 
the  proportions  and   harmonies  of  that  great  moral  system 
of  which  he  is  the  originator  and   supreme   head.      This, 
however,  would   be   nothing  more  than  a  change  of  phra- 
seology; for  this  doctrine  is  no  impeachment  of  his  omni- 
potence, and  predicates  nothing  more  than  lhathe  is  under 
a  necessity    of   conforming    to   his   own   essential    nature, 
whatever  that  is;   and  the  law  of  nature  being  presumed  to 
be  a  system   in   perfect  coincidence  with  that  nature,  we 
assert,  by  the  immutability  of  that  law,  nothing  more  than 
the  immutability  of  the  essential  attributes  of  Deity.      We 
do   not  perceive  how  the  conclusion  is  to  be  avoided,  to 
which  we  are  driven  by  the  consideration  of  God's  perfect 
wisdom  and  goodness,  that  he  must,  in  all  cases,  will  that 
which  is  true,  just  and   honest,  and  cannot  will   the  con- 
trary.    We  say  what  is  true,  just  and  honest,  and  these, 


Lect.  Villi]  OF    THE    LAWS    OF    NATURE.  309 

we  are  inclined  to  think,  are  so,  not  merely  because  he 
has  willed  them,  but  because  they  are  so  in  themselves, 
these  being  cceternal  and  coefficient  with  his  own  nature, 
and,  as  such,  prescribed  to  man  for  his  observance.  In 
this  sense,  then,  the  law  of  nature  may  be  said  to  be  com- 
mon to  the  creator  and  the  creature.  While  we,  from  the 
imperfectness  of  our  nature,  are  allured  to  the  obedience 
of  this  great  law  by  the  hope  of  reward,  or  by  the  fear  of 
pain,  He,  from  the  perfectness  of  his  nature,  is  necessa- 
rily determined  to  the  enactment  and  to  the  observance  of 
all  the  laws  of  the  moral  system  of  the  universe. 

The  question,  when  stated  in  a  different  form,  is  essen- 
tially the  same,  viz.  whether,  independently  of  all  law, 
divine,  natural  and  human,  an)''  action  can  be  regarded  as 
intrinsically  good  or  evil.  It  is  certainly  a  topick  of  ex- 
treme delicacy,  approached  by  all  with  great  diffidence,  and 
on  which  we  pretend  not  to  sbed  any  light,  as  it  has  baffled 
the  efforts  of  the  ablest  metaphysicians  of  all  ages.  The  wri- 
ters on  either  side  of  the  question,  have  not  agreed  in  their 
views,  and  scarcely  with  themselves.  The  affirmative  has 
been  maintained  by  Cudwofth,  Clarke,  Grotius,  and  many 
others;  whilst  the  negative  has  been  espoused  with  equal 
zeal  and  learning,  by  a  still  more  numerous  class  of  philoso- 
phers, as  Descartes,  Puffendorf,  Bolingbroke  &c.  Cudworth 
may  be  regarded  as  among  the  most  distinguished  champions 
of  the  doctrine  of  an  eternal  and  immutable  morality,  in- 
dependent of  the  will  of  Deity.  It  is  said  that  he  has  dealt 
with  the  intellectual  world  as  some  of  the  ancient  philo- 
sophers did  with  matter,  when  they  maintained  that  the 
Demiurgus,  or  divine  Architect,  moulded  the  frame  of  the 
world  out  of  eternal  or  primodial  particles  of  matter, 
having  a  wholly  independent  existence.  So  Cudworth  ima- 
gined a  sort  of  intellectual  chaos  of  independent,  eternal 
ideas,  in  which  God  sees  truly,  and  man  endeavours  to  see, 
the  real  essences  of  things.     In  this  view  of  the  learned 


310  OP    THE    LAWS    OP    NATURE.  [Lect.  VIII. 

author,  the  essences  or  foundations  of  morality  have  a  high- 
er source  than  Deity  itself,  and  exist  prior  to  the  existence 
of  any  moral   agent,  and  independent  of  the  will   of  him 
who  has  created  all  moral  agents*    Descartes,  on  the  other 
hand,  thinks  that,  though  the  essences  of  things,  (by  which 
he  means  their  possible  modes   of  existence,  in  contradis- 
tinction to  actual  existences)  are  eternal   and    immutable, 
yet  they  are  not  independent  of  God;  that  they  are  immu- 
table  and   eternal,  merely  because    God   has  so  willed  it; 
and  that  immutability  is  not  inconsistent  with  dependence, 
because   the  perfect  conformity  of  these  to  the  nature   of 
God's  universe  would  render  them  immutable,  though  they 
are  dependent  on  the  will  of  him  who  is  the  author  of  that 
universe.      Cudworth  has  found  great  fault   with  this  dis- 
tinction,  and   rejects  the   idea  that   God    is  the   author  of 
these  essences  as  well    as  actual  existences.      He  supposes 
the  former  to  be  eternal,  and  wholly  independent  of  God; 
and    hence,  that   moral  and  other  truths  have  an  indepen- 
dent existence,  prior  to  the  entities  to  which  they  are  rela- 
tive; and,  consequently,  that  the  moral   or  natural   law  is 
independent  of  God,  and  common  to  God  and  man.      But 
Descartes  is  by  some  supposed  to  have  meant  to  apply  his 
doctrine  only  to  such  truths  and  essences  as  relate  to  cre- 
ated beings,  and  not  to  such  as  relate  to  the  nature  of  Deity 
himself;  for  that  truths  which  relate   to   him,  must  be   as 
eternal  and   immutable  as  himself,  and  wholly  independent 
on  his  will,  since  it  would  imply  a  contradiction  to  suppose 
that   his  omnipotence  demanded   the  power  to  change  his 
own  nature.     Whether  this  were  his  idea  or  not,  we  incline 
to  think  it  the  sound  doctrine.     The  law  of  nature  there- 
fore, as  it  respects  man,  may  be  changed  by  him  who  cre- 
ated  man;   but  the  immutability  of  the  essences  and  truths 
which  relate  to  Deity  himself,  does  not  bind  Deity  by  any 

*  7  BoliDg.  Works,  280. 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  311 

obligation  or  law,  nor  does  it  in  any  degree  impair  his  om- 
nipotence, since  it  implies,  in  truth,  nothing  more  than 
what  all  theists  and  christians  place  as  the  very  foundation 
of  their  religion,  viz.  that  'with  God  there  is  no  variable- 
ness nor  shadow  of  turning.'  But  we  must  part  with  this 
subject,  which  is  perhaps  quite  too  abstract  for  the  occasion, 
and  which  j?hould  not  have  been  thus  alluded  to,  had  not 
our  scheme  of  instruction,  in  this  first  title  of  the  course, 
aimed  at  pointing  at  least  to  every  material  doctrine  of 
ethical,  as  well  as  of  mere    positive  or  civil  jurisprudence. 

(4.)  Difference  be-       The  great  rules  or  principles  whereby 
tween     the     Law   of  Qod  .      .^  tQ  CQnduct    lhfJ   mQral 
Nature,   and    Divine  '  J 

Positive  Law.  tern  of  things,  and  which  are  known  under 

the  name  of  the  laws  of  nature,  are  obviously  somewhat 
different  from  that  revealed  law  which  he  hath  given  to  the 
whole  human  family,  or  to  the  Jews  in  particular,  and  which 
is  denominated  Divine  Positive  Law.  This  revealed  code 
may  be  said  to  consist  of  two  branches,  viz.  the  Moral  Law, 
and  the  Ceremonial  Law.  The  difference  between  the  jus 
naturso,  and  the  revealed  law,  is  clear  enough,  if  we  con- 
sider what  makes  the  original  distinction  between  moral, 
and  mere  positive  duties.  If  the  Law  of  Moses,  for  exam- 
ple, forbids  murder,  and  the  eating  of  unclean  animals,  what, 
it  may  be  asked,  makes  the  first  a  moral,  and  the  second  a 
positive  precept?  To  say  that  the  one  is  a  precept  of  the 
law  of  nature,  and  the  other  is  not,  only  carries  us  back  to 
our  first  difficulty,  viz.  what  is  it  that  makes  them  different? 
They  are  not  established  by  a  different  authority,  for  God 
commands  them  both;  nor  are  they  under  different  sanctions, 
because  happiness  is  the  reward  of  obedience  in  both  cases: 
and  it  is  the  same  also  under  the  Mosaic  law  and  the  Gospel. 
Neither  do  we  gain  any  thing  by  saying,  that  every  moral 
duty  becomes  a  positive  one  when  God  is  pleased  to  declare 
such  a  moral  duty  by  any  express  command;  for  the  obliga- 
tions which  flow  from  the  law  of  nature,  when  clearly  ascer- 


-♦«*** 


312  OF    THE    LAWS    OF    NATTTRK.  [Lcct.  VIII. 

tained  by  the  light  of  reason  and  conscience,  are  the  same 
as  those  which  are  imposed    by  divine   positive  law.      The 
(rue  (1  '(Terence,  we  apprehend,  is  this:  under  God's  univer- 
sal moral  system,  actions  are  either  good,  bad  or  indiffer- 
ent; the  two  first  we  are  obliged  to  do  or  to  avoid,  because 
they  of  themselves,  as  we  perceive  by  the  mere  light  of 
nature,   invariably  produce  either  good   or    evil,    and   we 
therefore,  by  the  natural  law  alone,  are  under  an  obligation 
to  follow  or  to  eschew  them.     But  if  God  hath  been  pleas- 
ed to  enjoin  any  thing  which  by  the  law  of  nature  is  indif- 
ferent; this  indifferent  matter  then  acquires  a  distinct  char- 
acter, and   we  are  under  an  obligation  to   perform    it;   not 
that  the  Almighty  can  be  conceived  to  enjoin  any  thing  to 
no  purpose,  but  because  we  instantly  conclude  that  he  hath 
some  important  and  beneficial  aim,  correspondent  with  the 
general  designs  of  the  law  of  nature.      Thus  again,  for  ex- 
ample; the  natural   law  permits  us  to  labour  on  all  days  in- 
differently;  yet  God  hath  now  enjoined  on  all  men  the  ob- 
servance of  the  Sabbath,  designing  thereby  to  preserve  that 
lively  veneration  of  him,  and  remembrance  of  his  worship, 
which  are  enjoined    by  the   law  of  nature,  but  which  are 
more  effectually  promoted    by  this  excellent  positive  ordi- 
nance.     From  what  has  been  said,  it  appears  that  the  natu- 
ral and  divine  iaw  are  not  to  be  distinguished  from  each 
other  by  any  thing  which  relates  to  actions  bona  aid  mala, 
in  sc;  hut  by  this  only,  viz.  that  positive  or  revealed   law 
has  made  actions,  indifferent  in  themselves  under  the  natu- 
ral law,  assume  a  new  character  by  reason  of  injunctions 
and  prohibitions  annexed   to  them,  which  were  wholly  un- 
known to  the  natural   law.     It  is  true  that  a  great  portion 
of  what  is  called   divine  positive  law,  relates  to  matters  in- 
trinsically good   or  evil:  but  that  branch  of  the  scriptures 
called  the  moral  law,  is  nothing  more  than  the  natural   law 
more  clearly  revealed  to  us,  for  the  purpose  of  confirming 
the  natural  dictates  of  reason  and  conscience;  and  the  inter- 


Lect    VIII]  OF    THE    LAWS    OP    NATURE.  313 

nal  obligation  is  not  said  to  be  increased,  since  the  injunc- 
tions of  tbe  natural  law,  when  ascertained  by  the  light  of 
nature,  are  equally  obligatory  with  those  which  are  repeat- 
ed in  the  scriptures.  The  obligation  of  divine  positive  law 
is  said  to  be  both  internal  and  external;  the  former,  be- 
cause man's  reason  promptly  assures  him  that  Deity  is  in- 
capable of  enforcing  that  which  on  the  whole  is  not  pro- 
ductive of  good;  and  the  latter,  because  the  whole  scrip- 
tural system  has  revealed  to  us  that  punishment  shall  surely 
be  visited  on  all  who  violate  any  of  its  injunctions. 

Divine  positive  law  is  distinguished  from  the  law  of  na- 
ture chiefly  by  two  circumstances;  first,  the  mode  of  its 
communication  to  man,  and  secondly,  that  it  is  alterable  by 
the  authority  which  made  it;  whereas  the  prsecepta  na- 
turae are  eternal  and  immutable,  being  founded  in  the 
essential  nature  of  Deity  himself.* 

As  to  the  first,  viz.  the  means  of  arriving  at  the  know- 
ledge of  the  law  of  nature,  various  opinions  have  been  en- 
tertained in  all  ages,  and  in  all  countries.  Most  of  these 
are,  no  doubt,  extremely  absurd,  being  the  offspring  of 
Rabbinical  superstition,  of  scholastic  refinement,  or  of  me- 
taphysical pedantry.  A  brief  notice  of  these  theories  is  all 
that  we  can  allow  ourselves,  and  all,  indeed,  that  is  neces- 
sary. 

First.  The  Talmudists  assert  that  God  delivered  orally 
to  Adam,  and  subsequently  to  Noah  and  his  sons,  the  whole 
of  the  law  of  nature,  embraced  in  seven  short  and  energetic 
precepts,  now  of  universal  obligation.  They  regarded  this 
little  code  as  the  matrix  of  the  entire  body  of  moral  or 
natural  law,  'primordialem  legem,  et  matricem  omnium 
praeceptorum  Dei.'  They  also  held  that  although  these 
precepts,  (now  that  they  are  revealed,  and  have  become 
traditional  among  all  nations  and  people,)  are  perfectly 
consentaneous  to  the  human  understanding,  yet  a  revel*- 

*  Vide  ante  soc.  3. 
40 


314  0E    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

tion  was  essential,  and  that  these  elements  could  never 
have  been  brought  to  light  by  the  unaided  reason  of  man.* 

These  boasted  'Praecepta  Noachidarum,'  as  they  are  cal- 
led, do  not  justify  the  praises  bestowed  on  them  by  the 
Jewish  Rabbis.  They  enjoin  the  worship  of  one  God,  and 
that  a  murderer  shall  forfeit  his  life;  they  inhibit  idolatry, 
incest,  murder,  theft,  and  the  eating  of  animal  food,  unless 
cleansed  of  its  blood.  That  human  reason  could  have  as- 
certained the  necessity  of  all  of  these,  except  the  last,  we 
cannot  doubt:  but  if  not,  these  can  scarcely  be  said  to  fur- 
nish the  fundamental  rules  of  ethics  and  natural  law;  and 
the  ample  commentaries  of  the  Jewish  doctors,  or  even  the 
elaborate  annotations  of  modern  Christian  philosophers,  if 
restricted  to  these  precepts,  would  furnish  a  meagre  code, 
compared  with  what  we  now  call  the  system  of  natural 
jurisprudence.  It  must  be  admitted  that  the  Mishna,  and 
its  commentary,  the  Gemara,  even  as  pruned,  and  purified 
of  most  of  its  absurdities,  by  Maimonides,  in  the  twelfth 
century,  are  no  very  authoritative  source  either  of  unexcep- 
tionable morals,  or  of  pure  reasoning.  From  this  brief  ac- 
count of  this  famous  matrix  legis  naturae,  it  is  not  probable 
that  this  theory  as  to  the  origin  and  promulgation  of  the 
natural  law,  will  gain  many  adherents,  more  especially  as 
the  purer  pages  of  Holy  Writ  give  no  countenance  to  this 
traditional  figment. 

Secondly.  Another  mode,  according  to  the  Jewish  doc- 
tors, by  which  man  came  to  a  knowledge  of  the  laws  of 
nature,  was  by  inspiration,  partly  of  superintendency,  and 
partly  of  actual  suggestion.  Some  of  the  Rabbins,  on  the 
supposition  that  man  was  wholly  unable  of  himself  to  ar- 
rive at  these  important  truths,  and  that  the  oral  communi- 
cation of  the  laws  of  nature,  as  just  stated,  may  not  have 
taken  place,  assert  that  at  one  period   the    Schekinah,  or 

*  Selden.  de  Jure  Nat.  et  Gent.  Jib.  1  ca.   10.     I  Jennings'  Jew:  An- 
tiqu.  116. 


Lect.  VIII.]  OF    THE    LAWS    OP    NATURE.  315 

illuminating  presence  of  the  Deity,  was  so  strong  in  the 
minds  of  some  of  the  patriarchs,  that  they  became  ac- 
quainted, not  only  with  the  principles  of  the  laws  of  na- 
ture, but  with  those  of  universal  science.  During  this  pe- 
riod, these  pious  fathers  also  consulted  Deity  through  their 
high  priest,  and  the  minds  of  the  prophets  were  so  en- 
lightened by  the  superintendent  inspiration  of  Deity,  that 
these  great  truths  became  familiar  to  them,  and  were  trans- 
mitted by  the  scriptures,  and  by  tradition,  to  all  ages  and 
countries.  It  is  further  stated  by  them,  that  the  fulness  of 
the  Divine  presence  withdrew  itself  in  after  ages;  but  still 
that  the  Jewish  nation  was  under  a  more  special  protection 
than  other  nations,  and  that  important  truths  continued  to 
be  communicated  through  a  mediate,  or  more  remote  inspi- 
ration. It  appears,  then,  that  the  seven  precepts,  accord- 
ing to  the  first  theory,  were  not  imparted  by  any  species 
of  inspiration,  but  by  an  express  oral  communication; 
whereas,  according  to  this  second  mode,  the  knowledge 
was  gained  either  by  an  inspiration  which  aided  human 
reason,  (and  which  modern  theologians  call  an  inspiration 
by  superintendency)  or  by  a  direct  inspiration,  in  defined 
ideas,  and  exact  language,  as  to  matters  above  human  rea- 
son; which  the  same  theologians  denominate  inspiration  of 
suggestion.  As  to  this  .theory  we  have  only  to  remark, 
that  the  fullest  faith  in  our  holy  religion  does  not  require 
us  to  believe  that  the  principles  of  morals  are  above  the 
reach  of  human  reason,  and  must  have  remained  unknown 
if  not  revealed  by  inspiration  of  some  kind.  We  therefore 
dismiss  this  hypothesis  as  entitled  to  no  more  regard  than 
that  of  the  seven  precepts  said  to  be  given  to  the  Noa- 
chidae. 

Thirdly.  The  next  opinion  on  this  subject,  which  has 
been  greatly  disputed,  but  to  which  we  can  only  allude,  is 
that  all  our  knowledge  of  morals  and  the  natural  law  is 
derived  to  us  solely  from  human  reason,  which  invariably 


316  OP    THE    LAWS    OP    NATURE.  [Lect.  VIII. 

pronounces  a  judgment  in  all  cases  of  moral  approbation 
and  disapprobation;  and  tbat  not  only  the  entire  code  of 
morals  and  natural  law  flows  from,  and  through  the  channels 
of,  the  reasoning  faculty,  but  that  none  of  its  rules  derive 
even  an  additional  certainty,  or  obligatory  force,  from  any 
other  source.  The  advocates  of  this  doctrine  say  that  on 
some  points  the  judgments  of  reason  are  pronounced  with 
such  wonderful  rapidity,  as  to  assume  the  appearance  rath- 
er of  an  instinctive  sentiment,  or  moral  sense,  than  of  sure 
conclusions  attained  by  any  ratiocinative  process;  while  on 
other  matters,  the  mind  arrives  at  its  conclusions  by  a  re- 
gular chain  of  argument  and  induction.  Those  who  main- 
tain this  doctrine,  are  not  content  with  the  admission  that 
the  rules  of  morals,  and  the  laws  of  nature,  are  strictly  con- 
formable to  reason,  but  they  hold,  as  we  have  said,  that  there 
is  no  other  means  of  arriving  at  the  knowledge,  of  any  of  them 
than  by  reason,  and  that  there  is  no  other  faculty  of  the  mind 
which  in  any  degree  co-operates  with  it.  They  contend, 
in  fine,  that  all  moral  distinctions  are  not  only  as  demon- 
strable as  mathematical  truths,  but  that  no  other  means  are 
requisite  for  their  full  effect  as  well  as  ascertainment,  than 
the  reasoning  faculty:  That  all  sense  of  obligation  to  obey 
them,  and  all  that  we  call  moral  approbation  and  disappro- 
bation, proceed  wholly  from  reason:  That  this  approbation 
or  disapprobation  diners  in  no  respect  from  the  judgment 
which  reason,  in  its  general  operation,  pronounces  in  all 
other  cases:  That  however  strong  may  be  our  admiration 
or  disgust  of  certain  actions,  the  mind  is  in  such  cases 
merely  affected  with  a  thorough  sense  of  truth,  derived  to 
it  by  the  reasoning  faculty:  And  that  this  judgment  of 
approbation  or  disapprobation  is  attended  by  degrees  of 
pleasure  or  pain,  only  as  reason  is  more  or  less  clear  in  ar- 
riving at  its  conclusions. 

Fourthly.   Closely  allied  to  the  foregoing  theory,  is  that 
which  allows  to  reason  it3  full  share  in  the  ascertainment  of 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  317 

moral  distinctions,  but,  at  the  same  time,  claims  for  senti- 
ment an  active  influence  in  producing  on  the  mind  lhat 
thorough  conviction  of  truth  which  affects  the  heart  also, 
and  pronounces  certain  actions  good,  and  worthy  of  being 
practised,  and  others  bad.  and  to  be  carefully  avoided. 
This  hypothesis  maintains  that  in  every  case  of  moral  dis- 
crimination, two  distinct  faculties  are  called  into  requisi- 
tion, viz.  reason  and  sentiment;  and  that  virtue  and  vice 
naturally  and  essentially  affect  the  human  mind  differently, 
it  being  in  the  very  constitution  of  man  to  love  virtue,  and 
to  abhor  vice,  which  are  made  known  to  him  by  the  united 
operation  of  reason  and  sentiment.  Hence,  says  Mr  Hume, 
'I  am  apt  to  suspect  that  reason  and  sentiment  concur  in 
almost  all  moral  determinations  and  conclusions.  The  final 
sentence,  it  is  probable,  which  pronounces  characters  and 
actions  amiable  or  odious,  praiseworthy  or  blameable;  that 
which  stamps  on  them  the  mark  of  honour  or  infamy,  ap- 
probation or  censure;  that  which  renders  morality  an  active 
principle,  and  constitutes  virtue  our  happiness,  and  vice  our 
misery:  It  is  probable  that  this  final  sentence  depends  on 
some  internal  sense  or  feeling,  which  nature  has  made  uni- 
versal in  the  whole  species.'* 

From  this  view  of  the  subject,  it  appears  to  be  the  pro- 
vince of  reason  to  ascertain  from  all  the  circumstances  of  a 
given  case,  the  various  tendencies  of  the  actions  involved 
in  it;  while  sentiment,  by  a  law  of  our  nature,  necessarily 
and  feelingly  distinguishes  the  moral  from  the  bad;  the 
good  from  the  evil;  the  useful  from  the  prejudicial;  giving 
activity  to  the  judgment,  and  enabling  reason  more  effect- 
ually to  accomplish  its  work.  This  hypothesis  does  not 
allow  to  reason  alone  the  power,  in  any  case,  to  define  tiic 
merit  or  demerit  of  an  action;  sentiment  must  participate, 
independently  of  all  volition;   and  this   gives  us  pain  or 

*  Hume's  Essays,  vol.  2,  210. 


318  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

pleasure  at  the  contemplation  of  vice  or  virtue,  proportion- 
ed to  the  perfection  of  our  moral  structure,  which  may  be 
much  affected  by  our  moral,  intellectual,  and  perhaps  phy- 
sical education.  There  can  be  little  if  any  cause  to  doubt, 
that  this  theory  is  nearer  the  truth  than  that  which  ascribes 
our  knowledge  of  the  laws  of  nature  to  reason  alone,  or  to 
sentiment  alone,  as  some  have  maintained. 

Fifthly.  The  next  opinion  we  shall  note,  is  that  of 
Hobbes,  who,  so  far  from  admitting  the  law  of  nature  to 
be  the  law  of  God,  ascertained  either  by  his  express  com- 
munication, by  inspiration,  isason  or  sentiment  &c.  contends 
that  this  law  becomes  known  to  us,  and  obligatory,  only 
when  enacted  by  the  laws  of  man;  that  the  civil  magistrate 
is  the  sole  organ  whereby  this  knowledge  is  obtained,  and 
its  obligations  created!  This  theory  makes  the  origin  of 
natural  law  wholly  independent  of  God;  while  some  of  the 
others  we  have  just  mentioned,  make  it  wholly  indepen- 
dent of  the  human  mind  and  heart. 

It  is  indeed  wonderful  to  what  lengths  a  fondness  of 
theory  often  carries  the  mind,  and  how  many  absurdities 
even  learned  men  are  capable  of,  and  almost  conceal  from 
themselves,  by  the  use  of  novel  or  unmeaning  words. 
Hobbes,  pressed  by  the  powerful  claims  of  right  reason,  is 
compelled  to  admit  that  this  is  the  rule,  while  he  denies 
that  it  is  the  law  of  human  conduct.  The  judgments  of 
reason,  as  they  are  stated  in  the  writings  of  the  soundest 
ethical  philosophers,  and  the  opinions  of  individuals,  as 
they  are  sanctioned  by  reason,  by  conscience,  sentiment 
&c.  are  not,  in  his  opinion,  authoritative:  they  do  not 
amount  to  laws,  ob  defectum  auctoritatis  summce!  All 
actions  he  believes  to  be  wholly  indifferent,  until  the  civil 
magistrate  makes  a  difference  by  commanding  some,  and 
inhibiting  others;  his  pervading  and  magical  maxim  being 
Non  Veritas,  sed  auctoritas  facit  legem. 


Lcct.  VIII.]  OF    THE    LAWS    OF    NATURE.  319 

But  whatever  may  be  the  source  of  communication  of 
the  natural  law,  all  now  agree  that  it  is  clearly  distinguish- 
ed from  divine  positive  law,  as  to  the  mode  by  which  it  is 
ascertained,  and  also  in  its  unchangeable  nature; — on  both 
of  which  we  have  dwelt  perhaps  sufficiently  long. 

(5.)  Whether  this  Besides  the  two   leading  opinions  al- 

law  is   derived  from  d         ^   refer   the    Qri    in    of 

the  consent  of  man-  J 

kind.  the  law  of  nature,  the  one  to  the  Divine 

will  alone,  the  other  to  a  natural  decorum  and  fitness  in 

the  things  enjoined  or  prohibited;  there  are  several  other 

doctrines  connected  with  this  subject,  which  deserve  our 

special  notice. 

We  shall  now  examine  a  hypothesis  usually  ascribed  to 
Aristotle,  which  seeks  for  the  source  of  this  law  in  the 
consent  of  mankind,  or,  at  least,  of  the  majority  of  what 
are  called  the  most  refined  and  enlightened  nations.  If  by 
this  is  feally  meant,  that  we  may  appeal  to  the  concurrent 
testimony  of  enlightened  man  for  the  doctrines  of  natural 
jurisprudence,  we  do  not  perceive  how  this  can  be  de- 
nied, though  a  contrary  doctrine  has  been  ably  maintained 
by  Mr  Ward,  in  his  Inquiry  into  the  Foundation  and  His- 
tory of  the  Law  of  Nations,  as  we  shall  presently  have 
occasion  to  show. 

The  opinion  of  mankind  at  large  on  any  subject,  is  the 
only  natural  standard  by  which  the  probable  truth  of  the 
matter  is  to  be  judged.  It  certainly  raises  a  strong  pre- 
sumption in  favour  of  a  doctrine,  when  many  men  of  dif- 
ferent nations  concur  in  it;  but  this  may  not  be  decisive. 
Nor  is  this  standard  at  all  shaken  by  the  fact,  that  the  mo- 
ral opinions  and  practices  of  some  nations  and  tribes  have 
been  extremely  variant  from,  and  even  opposite,  on  many 
essential  points,  to  what  are  deemed  sound  morals  in  Chris- 
tian or  polished  communities.  Neither  does  this  doctrine 
of  the  natural  standard,  which  was  the  opinion  of  many 
philosophers,  from  Aristotle  down,  suffer  from  the  conces- 


320  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

sion  that  even  some  enlightened  and  refined  nations  have 
entertained  sentiments,  and  exhibited  manners,  wholly  in 
hostility  to  our  scheme  of  morals.  Nor,  lastly,  is  it  affect- 
ed by  the  admission  that  the  simple  excel  the  wise  in 
number,  and  that  if  the  actual  practices  of  men  are  indica- 
tive of  their  notions  of  right  or  wrong,  vice  and  dishonest 
arts  would  seem  to  be  more  congenial  to  the  nature  of  man, 
than  what  we  denominate  decorum  and  virtue.  All  these 
may  be  conceded  for  the  sake  of  argument,  and  yet  human 
opinion  may  not  be  impugned  as  the  standard  of  moral  dis- 
crimination. 

It  is  to  be  observed  in  the  first  place,  that  the  opinions 
of  nations  on  these  points  have  not  been  more  at  variance 
than  those  of  different  individuals;  and  that  as  the  latter 
often  bend  their  principles  to  some  predominant  inclina- 
tion, so  the  eccentricities  in  the  manners,  customs  and 
morals  of  nations,  very  generally  spring  from  sofne  con- 
trolling superstition,  the  mandate  of  some  powerful  prince, 
the  gradual  influence  of  erroneous  state  policy,  and  even 
from  the  misapplication  of  sound  principles.  This  is  dis- 
cernible, perhaps,  in  the  famous  notion  of  the  Spartans, 
that  no  disgrace  should  attach  to  theft,  but  only  to  the 
awkwardness  of  the  perpetrator  in  permitting  its  discovery. 
So,  also,  though  the  ignorant  exceed  the  wise  in  number, 
yet  in  all  nations  and  ages,  the  ignorant  have  generally 
preserved  a  tolerably  accurate  knowledge  of  the  leading 
principles  of  molality,  and  respected  the  opinions  of  those 
whom  they  deemed  their  superiors  in  virtue  and  wisdom. 
And  finally,  the  worst  practices,  whether  national  or  indi- 
vidual, do  not  conclusively  prove  a  want  of  knowledge  of 
those  principles  of  morals  which  they  violate.  So  that  all 
these  objections  amount  to  nothing  more  than  what  is  ob- 
viously a  fact,  viz.  that  policy,  passion,  false  reasoning, 
erroneous  education,  the  corruptions  of  our  nature,  &c. 
cause    both    communities    and   individuals,  civilized    and 


Lect.  VIII.]  OP    THE    LAWS    OF    NATURE.  321 

savage,  occasionally  to  swerve  from  the  clearest  dictates  of 
reason  and  moral  sentiment.  On  this  fact  we  shall  have 
occasion  to  comment  fully  hereafter. 

An  appeal,  however,  to  human  opinion  as  an  index  of 
truth,  is  a  very  different  tiling  from  making  it  truth  itself. 
So,  likewise,  to  assert  that  the  judgment  of  mankind  has 
hit,  for  the  most  part,  on  the  just  principles  of  the  natural 
law,  is  very  distinct  from  the  proposition,  that  what  it  es- 
teems right,  is  therefore  right.  It  is  very  certain  that  there 
are  principles  of  action  more  conformable  to  the  design  of 
our  nature  than  others;  and  there  is  no  difficulty  in  con- 
ceiving, not  only  that  some  of  these  might  lie  hidden  per- 
haps forever  from  mankind,  and  yet  not  be  the  less  true, 
and  consonant  to  our  nature,  than  if  they  had  been  discov- 
ered to  the  whole  world,  but  also  that  moral  truths,  at  one 
time  distinctly  known,  valued  and  practised,  may  never- 
theless, from  a  combination  of  causes,  be  almost  wholly 
effaced  from  the  human  mind  and  heart.  Nor  is  there  any 
danger  to  be  apprehended  from  this  doctrine;  for  if  it  be 
asked,  if  all  men  were  now  to  consent  to  the  truth  of  an 
opposite  system  of  morals  from  what  now  obtains,  could  it 
be  demonstrated  that  they  were  in  the  wrong?  the  reply  to 
such  a  question  would  be  two-fold;  first,  that  the  truth  of  a 
proposition  is  not  to  be  tested  by  such  an  extreme  supposi- 
tion, it  being  unfair  to  make  it,  as  it  rests  on  the  denial  of 
one  of  the  main  sources  to  which  we  refer  our  knowledge 
of  moral  good  and  evil.  And  as  we  conceive  it  to  be  ut- 
terly impossible  for  mankind  to  consent  to  any  such  sys- 
tem, it  would  be  testing  the  soundness  of  a  given  propo- 
sition by  a  concession  which  cannot  be  granted  without 
virtually  abandoning  the  proposition  itself.  But  secondly; 
although  the  belief  of  all  makind  may  be  safely  appealed 
to  for  the  nature  of  truth,  yet  an  opinion  concurred  in  by 
many,  and  even  by  most  nations,  is  only  presumptively 
true.  Every  man  is  conscious  in  his  own  mind,  that  he 
11 


322  OF    THE    LAWS    OF    NATURE.  [Led.  VIII 

does  not  believe  a  proposition  merely  because  it  is  held  by 
others:  we  ask  for  proof,  and  that  proof  is  not  the  counting 
of  numbers,  but  the  comparison  of  principles,  made  by  our 
own  ratiocination;  and  when  the  opinion  is  formed,  a  con- 
trary opinion  of  numbers  will  not  shake  it,  unless  sustained 
by  reasons  sufficient  to  countervail  those  on  which  we  based 
ours. 

The  point  under  consideration  is  very  important  to  the 
just  apprehension  of  various  questions  of  natural  law,  af- 
fecting; the  communion  of  nations  no  less  than  of  individ- 
uals.  It  has  been  doubted  whether  tkere  be  any  law  of 
nature  independent  of  what  has  been  revealed  in  the  scrip- 
tures; and  whether  the  law  of  nations,  in  its  primitive,  and 
most  extended  sense,  be  any  thing  more  than  the  jus  na- 
turae applied  to  nations  as  mere  individual  moral  agents; 
or,  in  other  words,  whether  there  be  any  laws  of  nations, 
except  the  moral  precepts  revealed  to  mankind  by  God  in 
his  scriptures,  which  are  of  universal  obligation,  or  those 
contained  in  certain  positive  institutions  and  compacts  of 
nations,  which  are  obligatory  only  on  the  particular  nations 
by  which  they  have  been  adopted. 

Ancient  philosophers  generally,  the  Roman  civilians, 
and  many  of  the  jurists  of  modern  times,  as  Puffendorf, 
Hobbes,  Burlamaqui,  Vattel  &c.  maintain  that  natural  juris- 
prudence needed  no  aid  from  Deity  for  its  ascertainment  or 
obligation;  and  that  the  Jus  Gentium  is  this  natural  law 
applied  to  nations  as  to  individuals,  with  no  other  difference 
than  what  arises  from  the  respective  nature  of  the  two  sub- 
jects of  its  operation.  Grotius,  Huberus,  Bynkershoek, 
and  many  others  deny  that  there  is  any  other  law  of  na- 
tions than  that  which  is  positive  or  instituted,  and  conse- 
quently none  that  is  of  universal  obligation ;  and  Mr  Ward 
goes  so  far  as  to  say  that  there  is  neither  a  law  of  nature 
nor  of  nations,  but  that  which  is  enjoined  in  the  scrip- 
tures. 


Lect.  VIII. j  OP    THE    LAWS    01-'    NATURE.  323 

Though  we  agree  with  those  who  hold  that  natural  law 
is  ascertainable  by  the  faculties  of  the  human  mind,  and 
that  there  can  be  no  universal  law  of  nations  except  as  it 
arises  from  this  law  applied  to  nations  as  moral  entities,  yet 
we  think  that  Puffendorf  and  others  err  when  they  appeal 
to  the  manners,  customs  and  institutions  of  nations  for  the 
law  of  nature  and  nations  itself.  We  admit  that  what  is 
universally  approved  by  mankind,  must  be  regarded  as 
true,  and  that  what  is  generally  approved,  is  apt  to  be  true; 
but  we  object  to  the  general  conclusions  which  have  so 
often  been  drawn  from  particular  facts.  The  fault  of  Puf- 
fendorf's  reasoning  on  the  natural  law,  as  deducible  from 
the  consent  of  mankind,  is  that  he  places  too  much  reliance 
on  the  views  and  practices  of  particular  people  and  nations: 
he  is  too  much  disposed  to  educe  general  rules  from  special 
customs;  the  very  opposite  of  which  is  the  doctrine  of  Mr 
Ward,  who  allows  nothing  to  be  obligatory  as  a  law  of  na- 
ture, unless  it  be  universally  approved;  and  hence  he  argues 
that  there  can  be  no  natural  law  except  the  law  of  God, 
since,  as  he  contends,  there  is  no  one  point  of  morals  on 
which  mankind  have  universally  agreed. 

On  this  topick  Puffendorf  appears  to  have  mistaken  Aris- 
totle; for  the  very  passages  cited  by  him  from  the  works  of 
that  eminent  philosopher,  prove,  we  think,  that  Aristotle 
looked  perhaps  to  the  universal  consent  of  nations,  as  fur- 
nishing evidence  of  the  'jus  naturae.'  The  passages  to  which 
we  allude  are  these:  'Natural  justice  I  call  that  which 
bears  the  same  name  in  all  places,  and  doth  not  depend  on 
particular  sentiments:'  and  again:  'there  is  a  general  right 
and  wrong,  or  just  and  unjust,  believed  and  professed  by 
all  men,  although  no  society  should  be  instituted  among 
them,  and  no  covenants  be  transacted:'  and  finally;  'by  a 
kind  of  natural  divination,  all  mankind  distinguish  general- 
ly what  is  just  from  what  is  unjust,  independently  of  all 


324  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

social  distinctions.'*  We  do  not  perceive  how  from  the 
foregoing  passages  Aristotle  can  he  claimed  as  an  advo- 
cate of  the  opinion,  that  the  natural  law  is  to  he  drawn 
from  the  manners,  laws,  customs  and  institutions  of  nations; 
but  just  the  reverse.  It  is  evident  that  he  relies  on  universal, 
not  on  partial  opinions;  and  also  that  by  'natural  divination' 
he  evidently  meant  what  Dr  Hutcheson  has  revived  under 
the  name  of  moral  sense,  and  what  Burlamaqui  calls 
moral  instinct.  And  to  nearly  the  same  purpose  is  the 
opinion  of  Grotius,  who,  after  establishing  the  principles 
of  the  natural  law  in  the  constitution  of  human  nature, 
adds,  'all  I  have  been  saying  would  in  some  measure  take 
place,  were  we  even  to  grant  that  there  is  no  God,  or  that 
he  did  not  concern  himself  about  human  affairs.' 

,„ .  .  .    ,  Although   the    consent    of    mankind, 

(6.)  A  furtner  ex-  "  7 

aminationofthisdoc-  even  were  it  universal  on  a  given  point 

trine,   and   whether  0f  morals,  would  not  render  such   point 

the  law  of  nature  and 

nations  can  extend  to  obligatory  as  a  natural  law,  yet  the  uni- 

actions morally  indif-  versality  of  the  consent  would  furnish 
ferent. 

strong  evidence   of  its  truth.      Consent, 

then,  can  be  in  no  case  the  source  of  this  law.  But  it  is 
contended  by  some,  that  consent  is  the  only  proof  we  can 
obtain  of  the  truth,  and,  hence,  that  the  laws  of  nature  and 
nations  are  derived  from,  and  made  up  entirely  of  the  cus- 
toms of  nations,  and  that  we  are  to  digest  these  several 
codes  from  the  existing  manners  and  institutions  among 
them,  without  reference  to  what  is  called  with  us  intrin- 
sick  good  and  evil.  To  sustain  this  singular  doctrine,  its 
advocates  have  been  obliged  to  rely  on  certain  positions, 
the  fallacy  of  which  appears  to  us  extremely  manifest. 
These  positions  are,  first,  that  a  variety  of  opinions  on 
any  subject  proves  the  uncertainty  or  falsehood  of  all. 
Secondly,  that  there  can  be  no  criminality  in  actions  which 

*  Arist.  Rheto.  Lib.  ],  cap.  xiii. 


Lect.  VIII. J  OF    THE    LAWS    OF    NATURE.  325 

proceed  from  ignorance  of  those  principles  which  we  refer 
to  the  natural  law;  and  lastly,  that  the  general  prevalence 
in  any  age  or  country,  of  principles  at  variance  with  our 
own,  relieves  those  who  practice  them  from  all  just  impu- 
tation of  guilt!  Such  are  the  wild  doctrines  to  which  spe- 
culation leads  us,  when  we  give  up  reason,  conscience,  and 
common  sense,  as  the  sources  of  our  knowledge  of  right 
and  wrong. 

The  inquiry,  then,  is,  are  we  to  look  for  the  laws  of 
nature  and  nations  in  the  actual  practices  of  states  and  of 
people,  or  in  the  judgments  of  reason  and  of  conscience? 
Are  we  to  abandon  the  guidance  of  our  judgment  and 
moral  sentiments,  and,  against  the  convictions  of  both, 
pronounce  right  and  true  what  happens  to  be  practised 
by  very  many  of  our  species?  Are  there  no  means  pos- 
sessed by  every  individual,  of  arriving  at  truth,  though 
the  actions  of  a  majority  of  his  fellow  beings  indicate 
opinions  contrary  to  his  own?  We  think  there  undoubt- 
edly are  such  means,  and  that  an  individual  might  be  theo- 
retically and  practically  in  the  right,  though  opposed  to  all 
mankind;  and  so  they  might  all  be  in  the  wrong. 

This  is  stating  the  question  in  a  form  much  more  favour- 
able to  the  views  of  our  opponents,  than  the  history  of  our 
species  warrants;  but  even  when  thus  stated,  the  argument, 
we  think,  is  decidedly  against  the  adoption  of  prevailing 
customs  and  opinions  as  the  test  or  measure  of  the  natural 
law  of  individuals  and  of  nations.  We  have  admitted 
that  opinions  very  generally  adopted  and  practised  by  man- 
kind, are  extremely  apt  to  be  sustained  by  sober  reason, 
and  sound  conscience;  but  we  deny  the  fact,  that  opinions 
hostile  to  what  we  call  sound  morals,  have  very  generally 
been  approved.  It  is,  indeed,  a  remarkable  fact  in  the  his- 
tory of  man,  that  people  the  most  separated  by  space, 
time,  civilization,  religion  &c.  have  nevertheless  maintain- 
ed a  wonderful,  and  almost  universal  congruity  of  opinion 


326  OF    THE    LAWS    OK    NATUEE.  [Lcct.  VIII. 

on  the  cardinal  notions  of  human  rights  and  duties^  So 
striking  is  this  circumstance,  that  it  would  be  matter  of  ex- 
treme surprise  how  they  came  thus  to  agree  in  sentiment, 
were  we  to  refer  this  to  consent  or  accidental  coincidence, 
instead  of  some  necessary  principle  of  our  nature,  whereby, 
from  the  same  premises,  they  have  been  conducted  to  the 
like  conclusions. 

In  casting  our  eye  over  the  history  of  our  species,  what- 
ever may  be  the  occasional  deflexions  from  sound  moral 
opinions,  and  the  still  greater  departures  from  moral  prac- 
tices, we  contend  that  the  more  general  feature  both  of 
opinion  and  practice  has  been  conformity  to,  rather  than 
ignorance  and  disregard  of  the  fundamental  rules  of  morals. 
But  whilst  this  has  been  the  case  very  generally,  it  must 
be  conceded  that  in  different  ages,  and  in  various  countries, 
civilized  and  barbarous,  there  have  been  customs,  manners, 
laws  and  opinions,  altogether  variant  from  what  is  approved 
under  the  natural  law  and  christian  code,  and  which  would 
seem  to  imply  in  them  the  almost  total  absence  of  such  a 
conscience,  moral  sense,  and  right  reason,  as  we  are  in  the 
habit  of  appealing  to. 

Hence  it  has  been  strangely  inferred,  first,  that  reason 
and  sentiment  are  not  to  be  regarded  at  all,  nor  are  the 
opinions  of  men  and  of  nations  entitled  to  any  respect, 
even  as  evidences  of  the  natural  law.  Secondly,  that  there 
can  be  no  other  natural  law  than  what  has  been  revealed 
by  God  in  his  scriptures,  which  is  the  only  standard,  or 
obligatory  measure,  of  right  and  wrong.  And  thirdly, 
that  all  those  practices  and  customs  which  we  call  unnatu- 
ral, criminal  and  shocking,  are  neither  the  one  nor  the 
other,  when  practised  by  nations  ignorant  of  revealed  law, 
and  who  thus  act  from  the  general  prevalence  among  them 
of  opinions  different  from  our  own.  All  the  foregoing  in- 
ferences we  hold  to  be  utterly  untenable. 


Lect.   VIII. j  OF    THE    LAWS    OF    NATURE.  327 

And  first;  no  position  appears  more  strikingly  erroneous 
than  that  which  denies  to  man  the  privilege  of  invoking 
the  opinions  and  practices  of  his  species,  in  confirmation 
of  his  own  sentiments  and  reasoning,  merely  because  those 
practices  and  opinions  differ  among  themselves,  or  because 
his  own  may  not  always  be  consistent.  He  has  a  right  to 
appeal  to  them  whenever  they  conform  to  his  own,  as  evi- 
dence of  their  justness;  but  so,  likewise,  if  they  differ 
from  his,  he  has  a  right  to  compare  the  effects  of  his  opi- 
nions and  practices  with  those  which  attend  the  contrary 
opinions  and  practices  of  others. 

It  will  be  perceived  that  one  class  of  these  philosophers 
rely  on  the  opinions  and  practices  of  nations,  as  the  only 
means  of  becoming  acquainted  with  this  law,  excluding  the 
claims  of  individual  reason  and  sentiment;  whilst  the  other 
class  refuse  to  appeal  either  to  the  opinions  and  practices  of 
nations,  or  to  the  reason  and  sentiment  of  individuals,  be- 
cause the  former  so  often  differ  from  the  latter,  and  among 
themselves;  and  hence  is  it  that  they  refer  us  to  the  scrip- 
tures alone.  Here  we  may  take  a  middle  course,  and  whilst 
we  deny  that  the  customs  of  nations  make  this  law,  and 
are  to  be  resorted  to  as  the  only  certain  manifestations  of 
reason  and  moral  sentiment,  they  may  certainly  be  appeal- 
ed to  as  evidences,  and,  as  such,  may  be  relied  on  to  con- 
firm our  opinions  when  in  conformity  with  theirs.  So, 
taking  reason  and  sentiment  as  our  guide,  we  may  demon- 
strate the  fallacy  of  theirs,  when  they  differ  from  ours;  vir- 
tuous and  vicious  practices  needing  generally  no  other  il- 
lustration than  their  practical  effects.  To  admit  that  we 
have  no  sure  opinions,  and  no  immutably  wise  and  salutary 
practices,  because  they  differ  from  those  of  other  nations, 
which  must,  for  that  reason,  be  regarded  as  equally  virtu- 
ous and  wise  with  our  own,  would  be  to  admit  a  course  of 
argument  destructive  of  all  reasoning,  confounding  the 
distinctions  between  right  and  wrong,  destroying  at  once 


32S  OP   THE    LAWS   OF   NATURE.  [Lect.  VIII 

the  charm  of  virtue,  and  the  odiousness  of  vice,  and  in- 
volving us  in  the  most  absurd  and  gloomy  pyrrhonism. 

The  proposition,  that  a  variety  of  opinion  on  any  subject 
is  proof  of  the  uncertainty  or  falsehood  of  all,  is  so  weak, 
and  so  glaringly  erroneous,  that  any  one  unacquainted 
with  the  grave  follies  of  the  learned,  would  hardly  believe 
it  possible  such  a  notion  could  have  been  seriously  uttered. 
Were  this  proposition  admitted,  all  truth  would  vanish 
from  the  world:  nothing  could  be  certain,  or  received  as 
true,  since  every  thing  has  been  doubted  or  denied.  The 
existence  even  of  the  material  world,  which  we  see  and 
feel  and  hear,  was  questioned  by  Bishop  Berkeley ;  the  in- 
tellectual or  spiritual  world  was  equally  doubted  by  Mr 
Hume.  Descartes  was  certain  of  only  one  thing,  lcogito, 
ergo  sumf  being  his  single  maxim.  No  moral  or  physical 
truth  has  escaped  this  doubting  madness;  nature,  the  God  of 
nature,  his  omnipotence,  and,  in  turn,  every  attribute  ascri- 
bed to  him,  have  been  denied.  But  though  there  have  been 
no  truths  so  manifest,  no  facts  so  obvious,  no  reasonings  so  ir- 
resistible, no  feelings  so  acute,  no  affections  so  delightful,  as 
not  to  have  been  doubted  or  denied  by  the  sceptical  of  some 
age  or  country,  it  is  vain,  nevertheless,  to  argue  hence 
against  that  perception  of  certain  denned  truths,  of  which 
every  man  is  conscious.  Indeed  these  doubts  not  only 
contradict  themselves,  but  are,  after  all,  nothing  more  than 
eccentric  opinions  of  an  extremely  small  minority,  entitled 
to  no  consideration  whatever,  when  placed  beside  the  com- 
mon sense  of  the  bulk  of  mankind,  and  the  close  and  sober 
reasonings  of  some,  who,  to  lay  all  other  claims  to  considera- 
tion aside,  outweigh,  even  in  number,  those  who  have  at- 
tempted to  reason  on  the  other  side. 

Those  writers,  therefore,  who  have  inferred  that  there  is 
no  evidence  of  a  natural  law  to  be  deduced  from  the  opi- 
nions of  men,  because  there  has  not  been  in  them  a  perfect 
uniformity,  are  compelled  to  go  the  whole  length  of  the 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  329 

absurd  proposition,  that  nothing  can  be  certain  which  has 
ever  been  denied. 

Some  of  these  sceptics,  unable  to  resist  every  ray  of 
truth,  admit  that  we  may  arrive  at  some  sure  mathematical 
conclusions,  but  contend  that  no  others  can  be  relied  on, 
and  that  consequently  they  alone  have  remained  undoubt- 
ed.    But,  it  may  be  asked,  why  are  mathematical  conclu- 
sions alone  certain?  are  not  many  moral,  physical  and  his- 
torical truths  equally  susceptible  of  demonstration  or  proof? 
But  even  in  mathematics,  men  have  doubted  for  a  time; 
as,  for  example,  on  the  subject  of  the  logarithms  of  negative 
quantities,  or  the  negative  sign  in  algebra,  &c.  All  mathema- 
tical truths  ought,  therefore,  to  have  been  equally  doubted. 
So,  also,  in  natural  religion  there  have  always  been  nu- 
merous grounds  of  doubt,  and  very  various  opinions;  but 
would  any  one  for  this  reason  suppose  that  the  Grand  Lama 
is  not  a  grand  impostor;  that  Juggernaut  is  not  a  monstrous 
idol  of  the  darkest  superstition;   that  Mahomet  was  not 
merely  a  crafty  politician;  and  that  Jesus  Christ  was  not 
the  most  sublime,  the  purest,  and  the  most  disinterested  of 
all  moral  teachers? 

So,  in  the  science  of  government  opinions  have  at  all 
times  been  extremely  various;  but  that  variety  surely  does 
not  prove  that  all  our  notions  of  government  are  equally 
vague,  uncertain  and  false,  and  that  our  own  mixed  form, 
for  example,  is  equally  defective  with  those  in  which  there 
is  neither  responsibility  nor  checks  and  balances. 

Metaphysics  have  been  full  of  doubts  and  contradictory 
opinions;  yet  who  will  place  the  philosophy  of  Reid  and 
Locke,  and  Stewart  and  Brown,  alongside  of  the  jargon 
and  learned  whimseys  of  Kant  and  Leibnitz,  Fichte,  Hart- 
ley and  Boyle? 

In  chemistry  every  thing  has  been  hoped,  wonders  ac- 
complished, and   many  things   questioned  or  denied;  but 
who  would  look  with  utter  incredulity  on  the  experiment* 
42 


330  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

of  Lavoisier,  Ingenhouz,  Black,  or  Sir  Humphrey  Davey? 
Who  would  now  resort  to  the  occult  and  mystical  science 
of  Paracelsus,  with  as  much  hope  of  finding  truth,  as  in  the 
pages  of  a  Priestley,  a  Henry,  or  a  Thompson?  And  last- 
ly, every  department  of  natural  philosophy  has  been  dis- 
graced by  the  most  absurd  theories;  yet  who  presumes  to 
question  the  discoveries  of  Newton,  of  Halley,  of  Kepler, 
of  Franklin  and  others,  or  at  least  the  utility  of  most  of 
their  philosophy?  Hence,  nothing  can  be  more  unsound 
than  the  inference  that,  because  some  nations  and  people, 
ancient  and  modern,  civilized  and  savage,  have  maintained 
opinions  and  practices  shocking  to  reason  and  sentiment, 
our  notions  of  right  and  wrong  may  therefore  be  equally 
false  and  erroneous. 

Secondly.  Let  us  now  examine  whether  there  be  no 
other  natural  law  than  what  is  revealed  by  God  in  his 
scriptures. 

Burlamaqui,  as  we  have  already  intimated,  holds  that 
God  has  invested  man  with  two  means  of  ascertaining  the 
dictates  of  the  natural  law,  viz.  moral  instinct,  and  reason. 
By  the  former  he  admits  that  he  means  the  same  thing  that 
Dr  Hutcheson  does  by  the  term,  moral  sense;  and  that  by 
this  faculty  man  is  enabled  to  know  instantly,  in  certain 
cases,  moral  good  and  evil,  by  a  kind  of  sensation  or  taste, 
wholly  independent  of  reason  and  reflection.  He  exem- 
plifies this  in  various  ways,  as,  that  the  pains  of  others  ex- 
cite our  compassion;  that  gratitude  is  an  emotion  involun- 
tarily felt  towards  a  benefactor;  that  man  naturally  loves 
his  species;  that  ingratitude  is  a  vice  acknowledged  to  be 
such  by  every  human  being,  however  debased;  that  vene- 
ration for  age,  respect  of  parents,  honesty,  sincerity  and 
justice  are  naturally  preferred  by  all  men,  (though  their 
practice  is  often  different)  to  their  correspondent  vices;  and 
he  thinks  that  no  other  account  can  be  given  of  these  sen- 
timents, than  that  Deity  has  chosen  so  to  form  us;  and  final- 


Lect.  VIII]  OF    THE    LAWS    OF    NATURE.  3^1 

ly,  that  this  quick  and  lively  faculty  is  particularly  neces- 
sary to  the  bulk  of  mankind,  who  are  incapable  of  much 
ratiocination,  and  who,  if  it  were  otherwise,  would  do  bet- 
ter with  this  moral  instinct,  which  has  no  occasion  to  wait 
for  the  deliberations  of  the  mind,  than  to  rely  on  reason, 
since  numbers  of  human  beings,  ever  so  capable,  do  not 
care  to  reflect  about  any  thing.  He  then  adverts  to  the  ob- 
jection, that  there  have  been,  and  still  are,  many  savage  na- 
tions apparently  indifferent  to  these  sentiments;  but  he  is 
inclined  to  doubt,  not  only  the  accuracy  of  many  accounts 
given  us  by  voyagers  and  travellers  as  to  the  shocking 
depravity  of  nations,  but  the  inferences  which  philosophers 
have  deduced  from  them.  He  justly  concludes  that  we 
arc  often  mistaken  or  ignorant  as  to  the  true  reasons  on 
which  certain  revolting  customs  and  practices  are  founded, 
and  that  if  what  we  call  vices,  are  ever  virtues  with  them, 
it  is  because  they  have  greatly  abused  their  reason  and 
moral  nature,  and  have  been  gradually  led  by  controlling 
circumstances  to  pervert  and  misapply  good  principles. 
With  respect  to  some  customs  and  practices  of  enlightened 
nations,  he  contends  that  the  abuse  of  a  virtue  is  no  proof 
of  its  non-existence;  that  shame  and  modesty,  chastity, 
and  love  of  offspring,  are  all  natural,  but  that  by  irregular 
and  debauched  lives  these  powerful  sentiments  may  be 
nearly  extinguished;  and  that %it  would  be  as  fair  to  argue 
that  self-love  is  not  an  inherent  and  natural  principle,  be- 
cause men,  through  passion  or  other  motives,  sometimes 
squander  their  substance,  tear  their  limbs,  and  sacrifice  their 
lives;  as  that  gratitude,  honesty,  compassion,  abhorrence  of 
murder,  &c.  are  not  the  natural  products  of  the  human 
mind  and  heart,  because  men  often  practise  the  opposite 
vices. 

Mr  Ward,  on  the  other  hand,  in  his  treatise  on  the  Laws 
of  Nations,  wholly  denies  the  sufficiency  of  reason  and 
moral  instinct  to  acquaint  us  with  the  dictates  of  natural 


332  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

law,  as  a  universal  rule  of  action.  .   He  denies  the  existence 
of  that  faculty,  call  it  what  you  will,  which  is  said  to  ena- 
ble us  to  distinguish,  in  most  cases,  between  right  and 
wrong.     He  contends,  not  only  that  the  contradictory  opi- 
nions of  different  nations,  and  of  the  philosophers  of  the 
same  nation,  prove  that  there  is  no  such  thing  as  a  univer- 
sally obligatory  natural  law,  but  that  we  can  with  no  pro- 
priety appeal  to  the  existence  of  any  opinion  as  even  evi- 
dence  of  its   truth,    unless   that   opinion    be    universally 
adopted.     The  learned  author  admits,  however,  that  every 
man  must  be  guided  by  his  reason,  and  may  in  most  cases 
discover  what  is  proper  for  him  to  do  or  to  avoid,  and  thus 
becomes  a  law  unto  himself;  but  he  says  that  no  man,  nor 
set  of  men,  are  competent  to  point  out  rules  of  action  obli- 
gatory on  the  human  species,  and  that  neither  natural  rea- 
son, natural  conscience,  nor  both  united,  are  able  to  digest 
a  certain  and  fixed  rule  for  the  guidance  of  our  moral  conduct. 
This,  he  thinks,  is  altogether  the  gift  of  divine  revelation, 
which  imposes  a  code  of  private  and  public  ethics,  obliga- 
tory only  on  such  nations  as  have  embraced  Christianity  and 
Judaism;  and  there  can  be  no  law  of  nature  and  of  nations, 
of  universal  obligation,  until  the  whole  world  shall  have 
adopted  the  scriptures  as  the  common  standard  and  rule  of 
faith.     He  enumerates  many  shocking  practices  in  which 
savage  and  civilized  nations  have  indulged,  and  which  he 
relies  on  as  proving  great  diversity  of  opinion  on  the  sub- 
ject of    morals  and    natural   law,   and   consequently  that 
no  rules  derived  from  nature,  can  be  sure  and  obligatory 
on  all. 

Having  explained  the  opinion  of  this  ingenious  writer,  I 
propose  to  examine  it  with  some  attention,  as  it  is  essenti- 
ally obnoxious  to  nearly  all  the  objections  which  might  be 
made  to  most  of  the  foregoing  theories. 

First.  It  must  be  admitted  to  be  at  all  times  an  unsound 
mode  of  reasoning,  to  argue  from  matter  of  fact  to  matter 


Lect.  VIII.]  OP    THE    LAWS    OF    NATURE.  333 

of  right,  or,  in  other  words,  that  because  things  exist,  they 
rightfully  exist.  So,  on  the  other  hand,  it  is  equally  illo- 
gical, and  indeed  eminently  absurd,  to  argue  from  matter 
of  right  to  matter  of  fact,  as  the  whole  history  of  man  la- 
mentably shows.  Admitting,  then,  the  truth  of  the  histo- 
rical facts  relied  on  by  Mr  Ward  as  tending  to  prove  that 
every  species  of  conduct  which  we  consider  criminal,  un- 
natural and  abominable,  has  nevertheless  been  practised  and 
approved  by  various  nations,  the  inference  is  far  from  just 
and  logical,  that  these  actions  are  not  criminal  in  the  sight 
of  God,  and  condemned  of  sound  reason  and  natural  con- 
science. The  fact  of  their  being  practised,  is  not  even 
presumptive  evidence  of  their  being  rightfully  practised, 
because,  if  such  facts  are  evidence  either  of  the  innocence 
of  these  actions,  or  of  the  errour  or  uncertainty  of  our 
opinions,  we  might  then,  with  equal  and  greater  propriety, 
appeal  to  the  contrary  practices  of  nations,  as  strong  evi- 
dence of  the  correctness  of  our  views.  I  say  there  would 
be  greater  propriety  in  such  an  appeal,  because,  first,  the 
fact  is  undeniable,  that  what  we  call  moral  virtues  have 
been  almost  universally  regarded  as  such,  in  every  nation 
and  age,  the  contrary  practices  being  either  very  limited 
exceptions,  or  sustained  by  very  doubtful  authority;  and 
secondly,  because  the  clearest  reasoning,  and  the  strongest 
moral  feelings  of  enlightened  man,  assure  us  of  the  intrin- 
sick  nature  of  good  and  evil,  and  of  the  manifest  bounda- 
ries that  distinguish  the  one  from  the  other.  If  reason 
and  moral  feeling  be  of  any  worth;  if  civilized  and  edu- 
cated man  be  a  more  noble  being  than  the  savage  and  bru- 
tal Indian;  if  wisdom  have  any  claims  over  ignorance;  we 
are  entitled  to  assert  that  our  opinions  are  right,  and  that 
theirs,  so  far  as  they  contradict  ours,  are  wrong. 

Secondly.  Is  it  not  much  more  just  to  suppose  that  the 
accounts  which  we  have  of  these  odious  customs  and  prac- 
tices, have  been  sometimes  misunderstood,  often  fabricated, 


334  OF    THE    LAWS    OP    NATURE.  [Lect.  VIII. 

and  generally  over  coloured,  by  ignorant,  exaggerating  or 
mendacious  travellers;  and  that,  when  truly  described, 
they  may  have  been  the  result  of  gross  superstition,  of 
misguided  reason,  of  wicked  policy,  of  stifled  conscience; 
than  to  regard  them  as  evidence  of  the  total  uncertainty  or 
non-existence  of  any  fixed  moral  principles? 

Thirdly.  But  why  should  the  practices  alluded  to,  shake 
our  confidence  in  the  certainty  of  moral  discrimination,  in 
the  intrinsick  beauty  of  virtue,  in  the  hideousness  of  vice, 
and  in  our  capability  of  perceiving  the  moral  fitness  of 
things;  when,  at  the  same  time,  the  particular  vices  of  in- 
dividuals of  our  own  society  have  no  such  effect?  All  ex- 
perience teaches  us  that  the  most  delicate  and  virtuous 
minds  may  by  circumstances  become  so  debauched,  as  to  be 
insensible  of  all  shame,  regardless  of  all  crime,  and  reck- 
less even  of  their  own  personal  comfort  and  safety;  and 
yet  no  one  commonly  thinks  of  questioning,  from  such  ex- 
amples, the  certainty  of  our  moral  reasoning  and  feelings. 

Fourthly.  Mr  Ward's  theory  appears  to  be  based  whol- 
ly on  the  position  already  shown  to  be  untenable,  viz.  that 
a  variety  of  opinions  on  any  subject  creates  a  just  doubt  as 
to  the  correctness  of  any:  and  as  this  position  cannot  be 
maintained,  the  theory  falls  with  it.  Hence,  if  the  fullest 
credence  be  given  to  the  numerous  shocking  narratives  of 
human  depravity,  to  be  found  in  Herodotus,  Theopompus, 
Sextus  Empyricus,  Diodorus  Siculus,  Csesar,  and  others 
among  the  ancients;  and  in  Tavernier,  Hakluyt,  Thevenot, 
Broughton,  Marsden,  Petit,  Mandeville,  Marco  Polo, 
Orellaiia,  &c.  among  the  moderns;  and  which  have  been  so 
industriously  collected  and  commented  on  by  Grotius,  Bar- 
bey  rac,  Puffendorf,  Picart,  Taylor,  Suarez,  Locke,  Hume, 
Bolingbroke,  Montaigne,  Montesquieu,  Ward  and  others; 
still  we  do  not  perceive  how  the  last  mentioned  author  is  jus- 
tified in  concluding,  as  he  has  done,  that  the  laws  of  nature 
either  do  not  exist  at  all,  or  are  so  confounded  with  our 


Lect.  VIII]  OF   THE    LAWS   OF    NATURE.  335 

prejudices,  habits,  and  peculiar  ideas  of  virtue  and  happi- 
ness, or  are  so  variously  made  up  from  different  casts  of 
thought,  and  the  varying  perceptions  of  man,  as  to  render 
it  impracticable  to  fix  on  principles  of  universal  obligation.* 
And  to  sustain  him  in  this  conclusion,  he  resorts  to  several 
positions  as  premises,  which  we  can  by  no  means  allow 
him.  He  says,  'of  man's  nature  I  can  obtain  no  know- 
ledge except  through  the  same  channels  by  which  I  become 
acquainted  with  the  nature  of  other  animals;  nor  can  I  tell 
what  it  is  that  nature  demands  of  man  to  do,  except  by  in- 
quiring what  he  has  actually  done.'t 

It  is  impossible  to  yield  our  assent  to  these  positions, 
unless  it  be  proved  that  man  universally,  or  even  usually, 
acts  according  to  his  moral  nature,  and  the  lights  which  he 
really  possesses.  Had  man  in  all  nations  and  ages  pursued 
his  true  interest,  and  acted  up  to  the  obvious  dignity  of  his 
nature,  the  inquiry  into  what  he  has  actually  done,  could 
not  fail,  in  that  case,  to  unfold  to  us  a  faithful  picture  of  his 
real  nature.  But  Mr  Ward's  position  is  incorrect,  we 
think,  for  another  reason,  viz.  that  it  is  not  true  that  we 
have  no  other  channel  or  means  of  knowing  man's  nature, 
than  what  we  possess  in  regard  to  the  brute  creation. 
Brutes  act  by  unerring  laws,  in  obedience  to  unbending  in- 
stincts; for  this  reason,  there  can  be  no  swerving  from  their 
respective  natures;  we  are  therefore  very  certain  of  cor- 
rectly understanding  their  nature,  when  we  study  their  in- 
stincts, habits  and  actions.  It  is  not  so  with  man.  He  is 
a  free  agent;  he  may  conform  to  his  nature,  or  depart  from 
it  as  he  chooses;  his  actions  are  infinitely  various,  and  no 
certain  judgment  can  be  formed  of  his  intrinsick  cha- 
racter, from  contemplating  his  actions.  It  is  true,  we  stu- 
dy his  manners,  customs,  actions;  but  this  we  do  mainly 
with  the  view  of  ascertaining  his  present  condition,  his 
factitious  character.      So,  if  we  study  the  pradiocs  of  na- 

*  Ward's  L.  of  N.  54.  1  Ibid.  II. 


336  °P    THE    LAWS    OP    NATURE.  [Lect.  VIII 

tions  it  is  chiefly  with  the  intent  to  learn  their  particular 
character,  and  actual  condition;  not  to  draw  thence  decided 
conclusions  as  to  man's  nature  in  general.     The  position  is 
further  erroneous,  because  every  man  knows  his  own  na- 
ture, and  possesses  the  power  of  communicating  his  know- 
ledge of  that  nature  to  his  fellow  men.     By  this  continued 
comparison  of  character,  man  has  a  means  of  becoming  ac- 
quainted with  the  nature  of  his  own  species,  which  he  does 
not  possess  in  regard  to  the  nature  of  other  animals.     With 
them  we  can  hold  no  converse;  we  do  not  know  what  are 
their  ideas  (if  they  have  any)  as  to  their  own  individual 
character;  their  nature,  then,   can   be  known  to  us  only 
through  the   medium  of  their  actions.     If  we  have  suc- 
ceeded in  showing  that  these  premises  are  erroneous,  the 
theory  founded  on  them  has  been  sufficiently  answered.    We 
are  willing,  however,  to  travel  through  the  whole  argu- 
ment, and  perhaps  there  will  not  be  much  difficulty  in 
showing  its  fallacy  throughout.     Let  us  examine  a  few  of 
the  numerous  practices  of  nations,  so  often  alluded  to  by 
ancient  and  modern  writers,  as  evidence  that  the  primary 
dictates  of  what  we  call  the  moral  law,  were  to  these  peo- 
ple utterly  unknown,  and,  consequently,  that  a  natural  law, 
in  the  sense  used  by  us,   can  have  no  real  existence.     It 
will  be  found,  we  think,  that,  though  taken  indiscriminately, 
we  shall  discover  in  all  cases  a  solution   of  the   apparent 
difficulty,  without  resorting  to  the  violent  conclusion  that 
all  moral  distinctions  are  equally  uncertain;  that  none,  as 
such,  are  obligatory;  and   that  reason  is  unable  to  frame 
such  a  uniform  rule  of  right  and  wrong,  as  shall  bind  man- 
kind at  all  times  to  its  observance. 

The  non-existence  of  the  natural  law  is,  indeed,  a  doc- 
trine which,  if  antiquity  made  all  things  venerable,  might 
claim  for  itself  a  full  measure  of  respect;  for  Hobbes  had 
his  prototype  in  Carneades.  The  celebrated  opinion  of 
that  ancient  academician,   as  preserved  by  Lactantius,  is 


Lect.  VIII.]  <)F    THE    LAWS    OF    NATURE.  337 

nevertheless,  we  think,  unmixed  absurdity.  We  shall, 
however,  quote  the  passage,  which  may  be  thus  rendered. 
'Laws  were  approved  by  men  for  their  utility:  they  are 
consequently  often  changed  by  customs  and  by  times, 
according  to  the  views  of  those  by  whom  they  were  ori- 
ginally constituted.  But  there  is  no  natural  law.  All 
men,  as  well  as  all  animals,  are  conducted  to  their  various 
kinds  of  utility  by  their  respective  natures.  Hence,  there 
can  be  no  justice;  or,  if  there  be  any,  it  must  be  extreme 
folly  in  those  who  allow  it,  since,  in  consulting  the  good  of 
others,  the  just  would  thereby  prejudice  themselves!' 
This  philosopher  of  course  supposed  that  utility  was  alto- 
gether individual,  and  could  be  promoted  only  by  the  sel- 
fish appropriation  by  each  man,  of  all  that  he  could  get; 
and  that  nothing  but  extreme  folly  could  induce  any  one  to 
respect  the  claims  of  others.  Comment  on  such  a  philoso- 
phy were  needless. 

We  now  proceed  to  examine  some  of  the  vicious  customs 
and  laws  so  often  relied  on  by  those  who  follow  the  doc- 
trine we  have  been  so  long  endeavouring  to  impugn. 

1.  Herodotus,  among  very  many  like  prodigies,  relates 
that  the  Babylonians  have  a  custom  by  which  every  wo- 
man, a  native  of  the  country,  is  obliged,  once  in  her  life, 
to  attend  at  the  temple  of  Venus,  and  prostitute  herself. 
Any  stranger  passing  by,  threw  her  a  piece  of  money  de- 
dicated to  sacred  purposes,  as  an  indication  of  his  choice; 
and  women  even  of  the  highest  rank  never  failed  to  com- 
ply with  this  law.*  The  fact  was  no  doubt  so,  as  it  is  ve- 
rified by  other  authorities;  but  it  is  to  be  remarked  that  the 
origin  of  the  law  is  not  sufficiently  explained,  and  the  narra- 
tives of  Herodotus  are  to  be  taken  with  some  allowance,  as 
this  'Father  of  History'  is  known  to  have  been  extremely 
credulous,  and  much  given  to  fable.      This  was  his  reputa- 

*  Herod.  Lib.  1.  §  199. 
43 


33S  OF    THE    LAWS    OF    NATURE.  [Lect.  V1I1. 

tion  even  among  the  ancients.  Hence  Cicero  says,  '*/2pud 
Herodotum,  patrem  histories,  et  Theopompum  sunt  in- 
numerabiles  fabulsR.^ 

2.  Among  the  Saheans  one  woman  was  the  wife  of  a 
whole  family;  and  in  some  countries  women  were  privi- 
leged to  have  any  number  of  male  concubines,  by  which 
means  fathers  could  not  be  ascertained;  and  mothers  were 
rendered  equally  uncertain  by  the  practice  of  changing  the 
infants  as  soon  as  they  were  born.t  But  even  in  these 
countries,  and  with  these  abominable  practices,  the  general 
dictates  of  nature  and  reason  may  have  been  known  and 
respected.  Reason  is  often  perverted  on  particular  points, 
and  grossly  misapplied  by  overweening  prejudices,  when 
the  heart  and  mind,  in  most  other  respects,  are  preserved 
in  purity. 

3.  Zoroaster  allowed  parents  and  children  to  marry,  and 
the  Magi,  who  followed  his  laws,  permitted  no  one  to  be 
of  their  body,  if  not  the  offspring  of  such  a  connexion. 
Can  there  be  any  doubt  that  this  was  owing  to  some  power- 
ful superstition,  that  applied,  perhaps,  a  sound  rule  of  morals 
to  a  wrong  set  of  facts,  and  thus  produced  this  great  moral 
deformity?  And  Csesar  also  relates  that  among  the  Bri- 
tons 'Uxores  habent  deni  duodenique  inter  se  communes, 
et  maxime  fratres  cum  sororibus,  et  parentes  cum  liberis.'J 

4.  Infanticide  has  been  practised  by  various  nations. 
The  Spartans  considered  children  as  belonging  rather  to 
the  state  than  to  their  parents.  To  enable  them  to  defend 
their  country,  they  resorted  to  a  most  rigid  physical  edu- 
cation. Reason  and  morals  yielded  to  military  zeal,  and 
under  the  mistaken  idea  that  infants  of  slender  constitution 
might  prove  rather  a  burthen  than  a  defence  to  the  state, 
they  had  them  submitted  to  the  examination  of  tryers,  on 
whose  favourable    report   they  were  not  only  suffered  to 

*  Cic.  de  Leg  lib.  I  ca.  1.  f  Diod.  Sic.  Lib.  2. 

I  Caesar  Dc  Bel.  Gal.  lib.  1.  c.  5. 


Lect.  VIH.]  OF    THE    LAWS    OF    NATURE.  339 

live,  but  were  thoroughly  educated  to  arms;  but  if  pro- 
nounced irreclaimable,  were  cast  into  a  deep  cave  on  mount 
Taygetus.  The  like  cruelty  was  practised  among  the  The- 
bans;  and,  for  a  different  reason,  the  Chinese  do  the  same 
thing  at  the  present  day. 

That  infanticide  violates  both  reason  and  nature,  cannot 
be  denied;  but  how  often  is  the  voice  of  humanity  and  of 
reason  stifled  by  the  strong  necessities,  actual  or  supposed, 
of  state  policy;  and  how  often  does  the  repetition  of  crime 
lessen  the  horrour  of  its  first  commission,  until  the  hated 
act  at  length  becomes  almost  venerated  from  age  and  un- 
opposed custom? 

5.  Various  nations  have  not  only  permitted,  but  some- 
times encouraged,  what  with  us  are  called  incestuous  con- 
nexions. By  a  law  of  Solon,  an  heiress  was  compelled  to 
marry  her  next  of  kki,  and  a  wife  whose  husband  was  impo- 
tent, might  cohabit  with  her  husband's  nearest  relative. 
Brothers  and  sisters  were  also  permitted  to  intermarry,  and 
frequently  did  so. 

These  practices  of  civilized  and  savage  nations  in  regard 
to  marriages,  have  raised  a  question  whether  incest  is  ever  a 
crime  jure  naturae:  whether  it  is  ever  malum  in  se.  It 
has  by  some  been  contended  that  our  abhorrence  of  such 
connexions  is  to  be  ascribed  wholly  to  the  fact  that  we  have 
received  our  moral  code  from  the  Jews,  among  whom  it 
became  odious  in  consequence  of  the  positive  law  of  God; 
but  that  it  is  not  against  the  jus  primarium,  or  primary 
law  of  nature.  This  controversy  is  not  yet  settled  among 
the  casuists,  nor  do  we  intend  any  minute  discussion  of  its 
merits.  We  may  remark,  nevertheless,  that  revolting  as  all 
such  marriages  justly  are,  (knowing  as  we  do  that  they  vio- 
late, not  only  the  express  law  of  God,  but  our  established 
notions  of  the  decencies  of  life,)  yet  it  was  entirely  otherwise 
among  the  Greeks,  Persians,  Egyptians  &c.  who  had  no 
knowledge  of  the  law  of  God,  and  were  led  away  by  vari- 


340  OF    THE    LAWS    OF    NATURE.  [Led.  VIII. 

ous  circumstances  from  the  delicate  and  accurate  views 
which  we  entertain  on  the  subject.  And  though  mere  rea- 
son would,  on  due  examination  of  their  consequences,  lead 
us  to  condemn  all  such  marriages  between  persons  closely- 
related,  yet  the  intrinsick  difficulty  of  establishing  the  le- 
gitimate boundary  of  such  connexions,  seemed  to  pray  the 
assistance  of  divine  positive  law  to  settle  the  doubts  which 
might  otherwise  arise.  To  what  extent,  if  any,  this  is  a 
merely  positive  prohibition,  or  whether  it  be  in  whole,  or 
in  part,  a  dictate  of  the  jus  naturae,  affirmed  by  the  scrip- 
tures, is  to  the  christian  a  point,  perhaps,  of  no  peculiar  in- 
terest. To  the  mere  moralist,  however,  the  question  is  im- 
portant, for  it  is  not  sufficient  that  the  notions  of  society 
are  strongly  against  all  such  connexions.  It  behooves  him 
to  have  some  comprehensible  rule  on  the  subject,  and  that 
he  should  know  the  grounds  of  that  repugnancy.  As  so- 
ciety is  constituted  with  us,  there  is  no  difficulty  in  tracing 
the  source  of  that  abhorrence  with  which  we  contemplate 
such  connexions  as  amount  to  either  civil  or  natural  incest. 
And  here  it  is  necessary  to  distinguish  between  these  two. 
Natural  incest  is  sexual  intercourse  between  persons  related 
to  each  other  in  the  ascending  or  descending  line.  Civil 
incest  is  the  like  connexion  between  those  who  are  collate- 
rally related.  As  to  the  former,  it  is  so  obviously  against 
the  course  of  nature,  or  so  inevitably  pollutes  the  purest 
sources  of  some  of  our  best  affections,  or  so  necessarily  con- 
fuses rights  and  duties  which  ought  to  be  distinct,  that  rea- 
son and  natural  feeling,  if  not  greatly  perverted,  unite  at 
once  in  declaring  it  to  be  malum  in  se,  and  a  violation  of 
the  primary  law  of  nature.  In  regard  to  the  latter,  viz. 
civil  incest,  though  it  be  forbidden  by  the  law  of  God,  and 
is  offensive  to  the  established  decorum  of  most  societies,  it 
is,  by  some  opinions,  not  malum  hi  se,  and  violates  no 
fundamental  rule  of  natural  law.     Yet  in  so  far  as  concerns 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  341 

the  order  and  quiet  of  society,  it  may  be  difficult,  in  many 
cases,  to  distinguish  it  from  the  former. 

Under  this  distinction  between  natural  and  civil  incest,  it 
is  held  that  all  marriages  in  the  ascending  or  descending 
line,  however  remotely  related  the  parties  may  be,  are  na- 
turally unlawful.     There  is  a  quick  sentiment  of  detestation 
against  natural  incest.     Reason  at  once  perceives  that  the 
order  of  life  is  invaded,  that  the  veneration  due  to  age,  the 
protection  due  to  youth,  and  the  rights  and  obligations  of 
relatives,  would  be  utterly  confounded  by  such  connexions. 
The  heart  and  mind  unite  in  revolting  at  this  departure  from 
nature,  which  'propagates  by  succession  of  one  generation 
upon  another,  and  not  by  those  we  breed,  or  through  whom 
we  have  been  bred.'     Such  marriages  may  therefore  be  de- 
clared unnatural,  shocking  and  unlawful  jure  naturse.   But 
civil  incest,  however  abominable  it  sometimes  is,  however 
clearly  within  the  degrees  prohibited   by  divine  positive 
law,  and  however  it  violates  the  decorum  of  society,  is  still, 
in  the  opinion  of  many,  malum  prohibitum,  and  does  not 
violate  the  jus  primarium.     Hence,  persons  related  to 
each  other  in  the  collateral  line,  even  in  the  first  degree,  as 
brothers  and  sisters,  do  not  violate  the  primary  natural  law 
by  their  intermarriage.     Hence,  those  nations,  civilized  and 
savage,  that  tolerated  civil  incest,  violated    no  immutable 
law  of   nature,  no  divine  law,  no  law  of  man.      The  first 
has  not  forbidden  it,  the  second  was  unknown  to  them,  and 
the  last,  so  far  from  forbidding  it,  often  encouraged,  and 
sometimes  commanded  it.      In  a  society  where  Christianity 
prevails,  and  where  the  laws  and  usages  of  the  people  forbid 
such  connexions,  it  argues  the  greatest  depravity  to  violate 
public  decency  by  such  a  marriage,   as  it  breaks  in  upon 
one   of  the   strongest  trusts  reposed  in  man,   invades  the 
sanctity  of  private  life,  and  proves  the  wretch  who  is  guilty 
of    it,  capable  of  violating  all  other  confidences  the  most 
sacred. 


342  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

Inattention  to  the  distinction,  delicate  as  it  sometimes  is, 
between  natural  and  civil  incest,  occasioned  no  doubt  the 
unwarrantable  inference,  that  incest  generally  is  merely 
malum  prohibitum,  and  that  it  violates  in  no  case  the 
pudor  naturalis;  a  conclusion  not  only  false,  but  unsus- 
tained  by  the  alleged  practice  of  incest  in  the  infancy  of 
mankind.  It  is  not  true  that  natural  incest  was  ever  per- 
mitted by  God,  or  practised  in  the  infancy  of  mankind. 
As  God,  in  his  wisdom,  did  for  a  time  permit  mankind  to 
be  propagated  through  the  medium  of  what  is  now  called 
civil  incest,  the  just  presumption  is,  that  this  does  not 
contravene  the  primary  law  of  nature.  In  after  times,  he 
saw  fit  to  prescribe  the  exact  limits  within  which  col- 
laterals might  marry;  but  this  was  a  regulation  wholly  po- 
sitive, founded,  indeed,  on  infinite  wisdom,  and  an  accurate 
foreknowledge  of  man's  nature,  and  in  no  degree  impugn- 
ing his  own  eternal  law.  If  no  distinction  be  made  be- 
tween natural  and  civil  incest,  and  the  moralist  will  not  be 
bound  by  the  Levitical  degrees,  it  will  be  impossible  for 
him  to  ascertain  the  point  at  which  the  law  of  nature, 
ceases  to  prohibit  the  union.  If  the  ascending  and  descend- 
ing lines  be  wholly  excluded,  and  positive  law  should  for- 
bid a  union  between  persons  in  the  collateral  lines,  within 
certain  degrees,  none  will  be  found  more  consentaneous  to 
reason,  and  the  order  of  societies  in  general,  than  those 
prescribed  in  the  law  given  to  the  Jews.  All  christian  na- 
tions, however,  have  not  adopted  the  Levitical  degrees. 
In  some  countries,  marriages  within  the  whole  ascending 
and  descending  lines,  and  those  within  the  first  degree 
only  in  the  collateral  line,  are  referred  to  the  law  of  nature, 
and  are  held  to  be  void  by  a  rule  obligatory  on  all  nations. 
In  others,  the  forbidden  degrees  in  the  collateral  line  are 
carried  beyond  the  first  degree,  and  even  beyond  the  Le- 
vitical degrees.  Sufficient  has  been  said  on  this  point  to 
show  that  the  different  customs  of  nations  in  regard  to  mar- 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  345 

riage  between  relatives,  can  furnish  no  argument  against 
man's  ability  to  discover  the  law  of  nature.  * 

6.  It  is  also  said  that,  when  Rome  was  the  seat  of  re- 
finement, and  when  its  philosophers  descanted  on  morals, 
many  things  were  approved  which  violate  our  notions  of 
the  laws  of  nature;  as,  for  example,  that  the  accomplished 
Cato  lent  his  wife  Marcia  to  his  friend  Hortensius,  and 
that  this  was  usual  among  the  Romans,  in  order  to  improve 
the  race.  That  we  may  justly  understand  this  anecdote, 
however,  it  would  be  requisite  to  take  into  account  all  the 
views,  legal  and  moral,  which  the  Romans  entertained  con- 
cerning the  contract  of  marriage,  and  the  free  right  of  re- 
pudiation exercised,  as  well  by  the  wife  as  by  the  husband. 
It  is  said,  moreover,  that  Marcia  was  regularly  repudi- 
ated by  Cato,  and  then  legally  married  to  Hortensius,  and 
that  she  was  remarried  to  Cato  after  the  death  of  Horten- 
sius. To  us  these  practices  seem  extremely  revolting;  but 
their  existence  among  a  moral  and  refined  pagan  nation,  is 
no  proof  that  the  laws  of  nature  have  no  foundation  in 
immutable  truth;  but  only  that,  on  some  points,  reason  may 
be  perverted  by  licentiousness,  by  false  prejudices,  by 
tyranny,  and  many  other  causes.  Improper  laws  and  cus^ 
toms  often  obtain  among  a  people  against  the  known  dic- 
tates of  their  reason  and  conscience,  and  are  by  no  means 
to  be  relied  on  as  proof  of  their  ignorance  of  the  truths 
they  so  constantly  violate. 

7.  The  Tartars,  according  to  Hakluy  t,  have  a  strange  cus- 
tom. 'When  any  man's  father  deceaseth,  he  assembleth  all 
his  kindred,  and  they  eat  him!'      We  are  informed   by  the 

*  Vide  Grotius  De  Jure  B.  et  P.  lib.  2.  cap.  5,  sec.  12,  13;  Puff.  L.  N.  & 
N.  lib.  6,  cap.  1,  sec.  32;  Pliny's  Nat.  Hist.  lib.  8,  cap.  42;  Memora.  Socra. 
lib.  4,  cap.  4,  sec.  20,  22;  Selden  De  Jure  N.  &  G.  &c.  lib.  1,  cap.  5;  But- 
ler v.  Gastrin,  Gilbert's  Equity  Reports,  156;  Harrison  v.  Burwell,  Vaugh- 
an's  Reports,  206;  Burgess  v.  Burgess,  Haggard's  Reports,  886;  Wightnian 
v.  Wightman,  4  Johnson's  N.  York  Chancery  Reports,  343. 


344  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

same  authority,  that  the  people  of  Thibet  used  to  eat  the 
bodies  of  their  parents,  in  order  that  they  might  have  the 
most  secure  of  all  sepulchres;  and  that  they  made  cups  of 
their  skulls.  Picart  says  that  the  Floridians  ground  the 
bones  of  their  deceased  relatives,  and  drank  the  powder; 
the  inhabitants  of  Socatara  waited  not  for  the  expiring 
breath  of  their  kindred,  but  buried  them  alive;  and  the 
people  of  Java  were  accustomed  to  sell  their  old  men  to 
the  Anthropophagi,  or  man-eaters.  It  is  quite  probable  that 
these  accounts  are  highly  coloured,  and  it  is  very  certain 
that  naked  facts,  when  stated  without  any  of  their  reasons 
and  accompanying  circumstances,  are  frequently  extremely 
shocking;  but  when  explained,  are  sometimes  innocent, 
and  even  meritorious.  It  is  well  known  that  the  voyages 
and  travels  given  by  Hakluyt,  are  remarkable  for  want  of 
veracity,  and  for  the  extreme  cullibility  of  their  authors. 
Mr  Locke  remarks  of  this  writer,  that  'he  was  no  travel- 
ler himself,  but  stuffed  his  works  with  stories  taken  on 
trust  from  Tavernier,  whose  travels  are  full  of  mistakes, 
and  from  Picart,  whose  works  arc  filled  with  trash.' 

S.  Speed  relates  that  the  ancient  Anthropophagi  of  Ire- 
land were  accustomed  to  serve  up,  as  a  rare  delicacy,  the 
mammaj  of  women;  and  Picart  assures  us  that  the  Antis  of 
South  America  cut  their  prisoners  piecemeal,  while  alive, 
and  their  women,  smearing  their  breasts  with  the  reeking 
blood,  suckled  their  children.  He  further  tells  us  that  the 
Brazilians  used  to  fatten  their  prisoners,  and  then  eat  them; 
that  the  widows  of  African  kings  are  compelled  to  poison 
themselves  on  the  demise  of  their  husbands;  and  lastly, 
that  the  Mexicans  adored  an  idol  formed  from  every 
known  seed,  kneaded  with  the  blood  of  infants!  A  thou- 
sand such  disgusting  accounts,  true  and  false,  might  easily 
be  enumerated;  but  we  involuntarily  turn  from  them,  hap- 
py in  the  belief,  also,  that  they  are  to  little  purpose  in  the 
argument,  since,  if  admitted  in  all  their  shocking  bareness, 


Lect.  VIII.]  OF    THE    LAWS    OP    NATURE.  345 

they  only  prove,  what  has  never  heen  denied,  that  man, 
with  all  his  boasted  reason,  and  capacity  for  virtue  and 
knowledge,  is  often  inconceivably  wicked  and  ignorant. 
Still,  these  practices  can  no  more  be  said  to  establish  his 
inability  to  discover  truth,  and  to  practise  virtue  in  obedi- 
ence to  fixed  laws,  than  would  the  practice  so  uniform 
among  Indians,  of  enumerating  wholly  by  the  fingers, 
prove  man's  inability  to  discover  solely  by  the  light  of  rea- 
son, the  fixed  and  infinitely  various  principles  of  arith- 
metic. The  science  of  numbers,  so  truly  wonderful,  is 
now  well  known;  and  so  is  the  science  of  morals.  Theo- 
logians, when  contending  for  the  necessity  of  revelation, 
do  not  say  that  the  fundamental  principles  of  morals 
are  not  as  demonstrable  as  those  of  other  sciences.  It  is 
those  great  truths  of  our  religion  which  are  apart  from  a 
mere  moral  system,  that  are  wholly  above  reason,  and  were 
therefore  revealed;  and  in  order  to  dissipate  every  uncer- 
tainty which  the  perversity  of  man  might  introduce  into 
matters  of  such  vital  interest  as  sound  morals,  the  dictates 
of  reason  and  conscience  have  also  been  expressly  confirm- 
ed by  the  scriptures.  This  is  all,  we  suppose,  that  the 
learned  and  pious  Pascal  meant  in  speaking  of  the  revela- 
tion of  moral  principles.  The  pride  of  man  is  extremely 
apt  to  place  too  much  reliance  on  mere  reason,  while  chris- 
tian zeal  is  perhaps  too  willing  to  give  up  reason  altogether. 
But  to  proceed. 

Perverted  as  man  really  has  been  in  all  ages,  his  pic- 
ture ought  not  to  be  drawn  from  such  materials  as  we 
have  collected  from  ancient  and  modern  travellers.  Af- 
ter all  they  have  written,  we  are  enabled  to  form  only 
very  crude  notions  of  the  real  character,  individual  or  na- 
tional, of  the  people  whom  they  have  visited.  Their  man- 
ners, customs  and  laws  are  but  imperfectly  described,  and 
almost  always  without  their  attendant  motives  and  circum- 
stances; so  that  often  no  sound  judgment  can  well  be 
44 


340  OF    THE    LAWS    OP    NATURE.  [Lect.  VHL 

formed  concerning  them.  A  traveller,  however  intelli- 
gent, observant  and  candid  he  may  be,  sees  things  imper- 
fVctly.  But  this  class  of  writers  love  the  marvellous,  and 
know  that  their  readers  are  in  this  respect  like  themselves. 
They  are  generally  in  search  of  prodigies,  and  their  imagi- 
nation, added  to  their  usual  carelessness  in  examining  facts 
and  reasons,  often  from  want  of  time,  produces  a  caricature, 
instead  of  a  likeness,  of  the  people  they  describe.  When 
we  add  that  they  are  often  unacquainted  with  the  language, 
religion,  superstition,  prejudices  and  history  of  the  people 
whom  they  describe,  we  need  not  wonder  that  these  mon- 
strous deformities,  intellectual,  moral  and  physical,  have  usu- 
ally disappeared  as  the  remote  countries  described  by  them 
have  been  subsequently  explored.  In  regard  even  to  the 
Anthropophagi,  it  is  quite  probable  that,  were  their  history 
thoroughly  known,  we  .should  have  less  occasion  to  be 
shocked;  although  Sextus  Empyricus  is  pleased  to  say,  that 
such  is  the  natural  proclivity  of  man  to  feed  on  man,  that 
the  first  law  which  was  made  after  the  social  compact,  was 
to  prohibit  men  from  eating  each  other.  The  Floridians, 
in  more  recent  times,  and  the  Brazilians,  also,  had  no  such 
customs  as  those  we  have  stated  from  the  early  travellers 
into  those  regions;  and  such  customs  do  not  easily  yield 
to  the  lapse  of  a  century  or  two,  unless  when  a  new  reli- 
gion is  forced  on  the  people  by  foreign  nations.  The  en- 
lightened travellers  of  our  own  day  see  but  few  of  the 
prodigies  which  were  related  only  a  couple  of  centuries 
past,  of  a  people  who  since  that  time  have  held  scarcely 
any  intercourse  with  other  nations,  and  cannot  therefore  be 
supposed  to  have  changed.  The  Giants,  Pygmies  and  Her- 
maphrodites; the  Monosceli,  or  one  legged  people,  the 
Monoculous,  or  one  eyed  people,  the  Blemmyes,  or  head- 
less people, of  Africa,  the  Cynocephali  &c.  &c. ;  all  of  whom 
have  been  gravely  described  by  travellers,  have  entirely 
disappeared  in  this  age  of  general  illumination,  which  has 


Lect.  VIII.]  OP    THE    LAWS    OP    NATURE.  347 

ranked  geography  among  the  sciences.  If.  then,  the  mere 
visible  and  physical  characteristics  of  man;  his  stature,  form 
&c.  have  been  so  strangely  misunderstood,  or  intentionally 
misrepresented,  (as  they  must  have  been,  since  neither 
time  nor  civilization  could  effect,  any  change  in  these,  had 
they  existed,)  it  is  nowise  surprising  that  laws  and  customs, 
and  complex  institutions  should  have  been  still  more  gross- 
ly misapprehended.  We  are  justified,  then,  in  concluding 
that  we  are  not  sufficiently  acquainted  with  the  practices 
to  which  we  have  alluded,  to  draw  any  very  decided  infer- 
ences from  them;  and  that,  even  were  all  true,  they  do  not 
establish  man's  ignorance  of  the  primary  rules  of  natural 
law,  or  the  essential  indifference  of  all  moral  sentiments. 
The  people  thus  painted,  had  confessedly  many  virtues,  and, 
in  all  other  cases,  practised  the  very  moral  rules  of  which 
these  particular  customs  would  seem  to  prove  them  ignorant. 
It  would,  moreover,  appear  an  absurd  proposition,  even  to 
the  most  ignorant  human  being,  that  it  is  a  matter  of  to- 
tal indifference  how  he  thought,  as  his  opinion  was  proba- 
bly as  good  as  any  body's  else,  seeing  that  even  such  a 
being  would  always  recognize  some  standard  of  truth,  and 
would  adhere  to  his  notions  because  he  deemed  them  to 
approach  this  standard.  Yet  this  is  certainly  the  unvar- 
nished meaning,  and  the  necessary  tendency  of  the  doc- 
trine I  have  endeavoured  to  impugn. 

And  this  brings  me,  in  conclusion  of  this  subject,  to  the 
last  inference  that  has  been  drawn  from  the  notion  that 
there  is  no  natural  law,  viz.  that  the  general  prevalence  in 
any  age  or  country,  of  customs  founded  on  the  opinions  of 
the  people,  takes  from  such  customs  all  imputation  of  cri- 
minality, or,  at  least,  so  greatly  extenuates  them,  as  to  ren- 
der actions  which  are  highly  sinful  with  us,  nearly  innocent 
in  them.  There  can  be  no  doctrine  in  law  or  in  morals,  of 
a  more  dangerous  tendency  than  this.  It  is  one  which  has 
been  often  used,  even  with  us,  to  gloss  over  the  heinousness 


348  OF    THE    LAWS    OF    NATURE.  [Lcct.  VIII. 

of  crime.  Every  vice  of  superstition,  of  misguided  reli- 
gion, of  political  phrenzy,  has  sought  extenuation,  and 
sometimes  found  justification,  in  this  principle.  Most  of 
the  pernicious  theories  in  morals  have  heen  respected,  and 
their  authors  screened  from  merited  opprohium,  through  this 
supple  doctrine.  The  philosophy  of  Carneades,  of  Spino- 
sa,  of  Hobbes,  of  Collins,  Shaftesbury,  Rousseau,  Helve- 
tius,  Hume,  and  of  many  others,  takes  rank  with  that  of 
the  Q  ost  orthodox  writers.  But  we  apprehend  that  the 
enormities  of  savage  life,  and  the  licentiousness  of  civilized 
people,  can  never  be  excused  when  not  founded  in  invinci- 
ble ignorance.  Any  moral  system  which  compliantly 
moulds  itself  to  the  varying  fashions  of  the  times;  any 
custom  which  seeks  justification  from  general  prevalence, 
and  long  use;  must  be  practically  mischievous.  If  the  man- 
ners of  the  age,  however  general,  are  to  soften  the  odious 
lineaments  of  vice,  then  may  the  grossest  superstition  be 
denominated  religion;  the  most  shocking  persecutions,  mere 
party  zeal;  and  the  most  loathsome  vices,  sheer  ignorance. 
The  mild  policy  of  a  Trajan  is  no  more  meritorious  than 
the  ambition  of  an  Alexander,  a  Tamerlane,  or  a  Zingis- 
Khan.  The  murderers  of  Henry  IV.  of  France,  and  of 
Henry  II.  of  England,  would  then  be  mere  zealots.  So, 
also,  in  the  private  transactions  of  life,  the  worst  of  men 
may  thus  be  excused,  the  most  shocking  crimes  pardoned. 
The  individual  (it  might  be  argued)  was  not  well  educated; 
his  morals  were  greatly  neglected  in  his  youth;  the  like 
offences  were  long  prevalent  amoi:g  his  associates;  their 
manners  and  customs  were  familiar  to  him,  and  consequent- 
ly his  crimes  are  scarcely  to  be  regarded  as  such.  This,  in 
truth,  is  the  substance  of  the  argument  fairly  deducible 
from  the  doctrine  under  consideration;  and  its  absurdity  is 
made  only  a  little  more  manifest  by  an  example,  and  by 
putting  it  in  higher  relief. 


Lect.  VIII.]  OF   THE    LAWS    OP   NATURE.  349 

I  am  quite  sensible  that  the  topicks  of  this  section  of  the 
lecture,  have  been  dwelt  on  tediously,  and  perhaps  unne- 
cessarily. But  the  philosophy  of  universal  jurisprudence 
is  very  closely  allied  to  sound  morals.  The  precepts  of  the 
jus  naturas  are,  indeed,  the  laws  of  laws;  remove  this  foun- 
dation, and  all  instituted  laws  would  become  as  the  morn- 
ing vapours.  We  conclude,  therefore,  that  notwithstand- 
ing the  cavils  and  sophims  of  idle  and  subtle  philosophy, 
the  opinion  is  just  and  sensible  which  espouses  the  side  of 
natural  truth.  This,  we  contend,  is  ascertainable  through 
the  reason  and  moral  feelings  of  man;  is  based  on  the  na- 
tural fitness  of  things;  and  is  independent  of  all  consent, 
manners  and  laws  of  men.  This,  it  appears  to  me,  places 
the  laws  of  nature  on  their  true  basis:  it  makes  them 
neither  intuitive,  nor  yet  dependant  merely  on  human 
opinion.  It  admits  that  a  system  of  rules,  if  not  disco- 
verable by  the  moral  sense,  as  understood  by  Dr  Hutche- 
son,  is  yet  ascertainable  by  a  ratiocinative  process,  often  so 
rapid,  and  yet  so  unerring,  as  to  amount  to  nearly  the  same 
thing;  and  is,  at  the  same  time,  strengthened  by  a  natural 
admiration  of  the  beauty  of  virtue,  and  an  abhorrence  of 
the  deformity  of  vice. 

n  )  whether  Hob-  *  spoke  in  a  former  lecture  of  Hobbes's 
bes's  doctrine,  that  celebrated  hypothesis,  that  the  state  of 
nature  did   not  insti-  .  c  .  ,       .-i. 

tute  soc.ety,  but  dis-  nature  1S  one  of  vvar'  or  continued  hostlll- 
cord  among  men,  jus-  ty.     From  this  theory   his   criticks  have 

tines  the  conclusion     ,  ,,  ■      •  .,     ,  _•    .        • 

...  ,      .,    .   drawn    the    conclusion,    that    society    is 

of  his    criticks,    that  J 

society  is  against  the  against  the  design  of  nature;  but  this  in- 
design  of  nature.  ference  does  not  appear  entirely  just. 
Nature  has  not  produced  man  with  the  powers  of  speech, 
or  the  ability  to  reason  justly;  and  yet  no  one  concludes 
that  man  is  acting  against  the  design  of  his  nature,  when  he 
is  cultivating  language  or  reason.  Hobbes's  idea,  that  na- 
ture placed  man  in  a  state  of  separation  and  discord,  rather 
than  of   society  and  peace,  is  entire  reconcileable  with  the 


J50  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

principle,  that  society  is  in  the  highest  degree  consistent 
with  our  nature,  and  promotive  of  our  best  interests.  The 
passions  unsubdued  naturally  lead  us  into  excesses;  but  so 
far  from  acting  against  the  design  of  nature,  when  we  con- 
trol them  by  a  cultivated  reason,  and  a  guarded  conscience, 
we  are  then  fulfilling  the  highest  behests  of  him  who  made  us. 
The  warlike  relation  in  which,  according  to  this  hypo- 
thesis,  the  first  rude  and  ignorant  tenants  of  the  earth  stood 
towards  each  other,  if  it  has  any  foundation  in  truth,  ori- 
ginated merely  in  an  over  anxious  apprehension  concerning 
their  safety  and  interests,  which  we  may  suppose  subsided 
into  peace  and  security  on  the  discovery  of  the  probable 
benefits  of  social  and  civil  union.  So  that,  even  allowing 
that  self-interest,  and  rancour  of  man  against  man,  were 
the  chief  fountains  of  human  action,  reason  would  soon  as- 
sure us  that  the  most  powerful  means  of  advancing  our  in- 
terest, is  to  be  found  in  the  establishment  of  society  and 
o-overnment,  and  that  these,  although  not  established  by  na- 
ture, are  altogether  consistent  with  her  designs. 

(s.)   Opinion    of  That  reason  may  furnish  a  rule  of  con- 

Hobbes ,  that  the  die-  (]uct    but  nQt  &  ]&w   of  Qat          appears   to 

tates   of  reason   can  »    *  « 

be  respected  as  laws,  be   a  mere  verbal  nicety.      Hobbes  thus 

only  as  far  as  God  or  expresses  himself  on  this  subject.  'If 
man  has  enacted  them 

as  such.  the  laws  of  nature,  so  called,  are  the  dic- 

tates of  right  reason,  still  they  are  not  to  be  regarded  as 
laws,  except  so  far  as  they  have  been  enacted  by  God  in  his 
scriptures,  since  those  laws  which  we  call  natural,  are  noth- 
ing else  but  certain  conclusions  apprehended  by  reason, 
concerning  things  to  be  done,  and  things  to  be  omitted,  and 
since  law,  in  a  proper  sense,  is  only  the  speech  of  him  who, 
by  virtue  of  his  right,  commands  men  to  execute,  or  to  ab- 
stain from  some  performances;  therefore  they  are  not  laws 
as  they  proceed  from  nature,  but  only  as  they  are  enacted 
by  God  in  scripture.'*     And  in  other  places  he  asserts  that 

*  Hobbes  De  Cive.  chap.  3,  sec.  last.        Puff.  lib.  2,  ch.  3,  sec.  20. 


Lect.  VIII.]  OP   THE    LAWS    OF    NATURE.  351 

good  and  evil  are  ascertained  solely  by  civil  institution, 
and  that  moral  obligations  proceed  from  the  laws  of  society, 
and  not  from  those  of  nature. 

In  reply  to  this  distinction,  it  is  perhaps  sufficient  to  say, 
that  it  is  not  essential  to  a  law  that  it  should  be  conveyed 
to  the  subjects'  knowledge  in  any  particular  form.  It  is 
immaterial  how  the  sovereign's  will  is  ascertained,  whether 
by  revelation,  inspiration,  moral  instinct,  moral  sense, 
common  sense,  right  reason,  moral  sentiment;  for  these  are 
not  the  law  of  nature,  but  the  means  of  discovering  it;  so 
that  if  we  arrive  at  this  knowledge  through  the  most  cau- 
tious efforts  of  reason,  we  are  as  much  obliged  by  the  com- 
mand of  God,  as  if  he  had  vouchsafed  expressly  to  reveal 
his  will  to  us. 

But  perhaps  Hobbes  intended  something  more  than  to 
question  the  obligatory  force  of  natural  precepts,  on  the 
score  of  their  not  being,  as  he  supposed,  properly  promul- 
gated. When  contemplating  the  penalties  which  reason 
declares  to  be  consequent  on  the  violation  of  the  natural 
law,  it  might  easily  have  occurred  to  so  sceptical  a  mind  as 
his,  that  we  had  no  certain  knowledge  that  these  penalties 
were  thus  attached,  and,  consequently,  that  there  would  be 
no  obligation  until  they  were,  so  to  speak,  officially  pro- 
nounced. He  might  also  have  supposed,  as  some  others 
since  his  time  have  clone,  that  as  a  penalty  is  essential  to  a 
law,  if  the  penalty  were  the  only  source  of  obligation,  we 
might  choose  to  incur  the  penalty;  a  sort  of  reasoning 
which  resolves  all  obligation  into  mere  compulsion,  and  is, 
indeed,  at  variance  with  the  whole  theory  of  the  cause  and 
extent  of  mora!  obligation.  Hobbes  himself  argues  that, 
as  the  atheist  never  acknowledges  his  submission  to  the 
will  of  God,  and  as  no  one  can  have  sovereign  power  over 
us  without  our  consent,  therefore  the  atheist,  never  having 
been  under  God's  sovereignty,  is  not  responsible  for  diso- 
bedience to  his  decrees!      Whichever  of  the  foregoing  no- 


352  OF    THE    LAWS    OF    NATURE-  [Lect.  VIII. 

lions  may  have  prompted  that  philosopher  to  deny  all  obli- 
gation to  natural  laws,  except  when  revealed  by  God  to 
those  who  acknowledge  his  power,  is  not  of  any  moment, 
since  none  of  them  have  even  sufficient  plausibility  to  cause 
doubt  in  any  mind.  In  reply  to  this  notion  of  Hobbes,  we 
may  further  remark,  that  the  obligation  to  obey  the  laws  of 
nature  does  not  spring  merely  from  their  being  the  dictates 
of  right  reason,  but  from  a  well  founded  presumption  that 
the  author  of  the  universe  will  not  fail  to  pu.ish  the  viola- 
tion of  his  own  moral  system;  and  that  our  obligation  does 
not  rest  in  any  degree  on  our  assent  to  the  sovereignty  of 
God,  but  on  his  boundless  power  to  compel  obedience,  his 
infinite  wisdom,  and  his  perfect  benevolence,  which,  while 
they  have  made  good  and  right  convertible  terms,  have 
mingled  in  every  bosom,  perhaps,  an  abstract  love  and  ad- 
miration of  virtue,  independent  of  all  selfish  considera- 
tions. 

(9.)   Of   the   Pri-       AH  who  have  treated  natural  junspru- 
mary  and  Secondary  . 

laws  of  nature.  dence,    from   Aristotle  to  our  own   day, 

have  recognized  a  twofold  division  of  natural  law,  under 
different  names  indeed,  but  all  meaning  essentially  the  same 
thing.  By  some  these  divisions  are  called  the  primary  and 
secondary  laws  of  nature;  by  others,  proper  and  reductive, 
and  again  by  others,  absolute  and  hypothetical.  Closely 
allied  to  these,  if  not  the  same,  are  what  are  called  the  per- 
missive* and  mandatory  laws  of  nature.  These  expres- 
sions may  therefore  he  indiscriminately  used.  The  words 
'primary'  and  'secondary'  are  adopted  by  Heineccius,  Bur- 
lamaqui  and  others;  but  Grotius  and  Pufiendorf  use  the 
words  'proper'  and  'reductive,'  'absolute'  and  'hypotheti- 
cal.' 

The  primary  law  (jus  prima '.riumj  is  that  which  arises 
from  the  primitive  and  essential  nature  of  man,  affects  him 
under  all  possible  relations,  has  God  for  its  immediate  au- 
thor, and  never  can  be  departed  from.     It  enjoins  or  for- 


Lect    VIII.]  OJ'    THE    LAWS    OF    NATURE.  353 

bids  those  actions  which  are  right  or  wrong  under  all  pos- 
sible circumstances,  and  embraces  in  its  denunciation  only 
those  things  which  we  call  mala  in  se. 

The  Secondary  law  of  nature  (jus  secundarium )  is  that 
which  grows  out  of  the  relations  established  by  man,  as, 
for  example,  political  union,  marriage,  property.  Strictly 
speaking,  it  perhaps  comprehends  nothing  that  is  malum 
in  se;  but  it  imposes  a  moral  obligation  to  its  observance, 
and  sometimes  includes  in  its  prohibitions  things  so  mani- 
festly prejudicial,  that  the  casuists  have  found  it  difficult  to 
say  whether  they  were  not  more  properly  referrible  to  the 
head  of  things  mala  in  se,  and  as  such  embraced  by  the 
primary  law  of  nature. 

The  explanation  given  of  the  Absolute  and  Hypothetical 
laws,  shows  that  those  who  have  used  these  terms,  meant 
precisely  what  has  been  just  stated.  Dr  Taylor  says, 
'the  absolute  laws  of  nature  oblige  absolutely  all  persons, 
at  all  times,  and  in  all  places,  for  they  are  immutable;  the 
hypothetical  laws  oblige  only  conditionally,  that  is,  sup- 
posing such  and  such  conditions  or  relations  of  man  actually 
to  exist.'*  So  likewise,  things  are  said  to  be  referred  to 
the  law  of  nature  either  -properly  or  reductively,  and  Gro- 
tius  uses  these  terms  to  distinguish  things  due  in  strict  jus- 
tice, from  such  as  justice  does  not  contradict.  Under  the 
former  he  ranks  perfect  rights,  and  under  the  latter  those 
which  have  been  called  imperfect.! 

Burlamaqui  considers  the  secondary  natural  law  as  con- 
sequent on  the  primary,  and  that  it  is  nothing  more  than  a 
just  application  of  the  general  rules  of  the  primary  law  to 
the  circumstances  of  man,  as  they  arise  out  of  his  own  acts: 
and  Dr  Taylor,  in  speaking  of  the  hypothetical  law,  evi- 
dently means  the  same  thing  when  he  says,  that  this  law 
h3S  only  a  possible  or  contingent  existence,  whereas  the 

*  Taylors  Civil  Law,  l-'S,  130.       t  GrotiusPe  Jure  B.  ac  P.  lib.  1  ca.  1. 
4  5 


354  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

absolute  law  is  eternal.  The  former,  therefore,  is  said  to 
be  in  posse,  the  latter  in  esse. 

All  admit,  however,  that  this  secondary  or  hypothetical 
law,  when  called  into  operative  existence,  is  the  law  of  na- 
ture; and  being  approved  by  reason  and  conscience,  is  mo- 
rally binding.  It  is  not  a  new  law,  but  existed  as  natu- 
ral law  before  the  occurrence  of  those  circumstances  to 
which  it  is  now  made  to  apply.  An  example  or  two  may 
illustrate  the  distinction  alluded  to.  Society,  though  re- 
commended, is  not  commanded  by  any  law  of  nature;  but 
when  instituted,  all  the  rights  and  obligations  which  grow 
out  of  it,  are  based  on  the  secondary  law  of  nature.  The 
obligation  to  perform  all  our  just  promises  and  engage- 
ments, and  to  obey  the  laws  of  the  land,  is  referred  to  this 
secondary  law.  So,  also,  the  duty  to  abstain  even  from 
theft,  is,  in  the  opinion  of  some,  referred  to  the  jus  secun- 
darium;  for  in  this  way  is  Dr  Taylor  to  be  understood, 
when  he  says  that  if  civilians  declare  that  theft  is  base  in 
its  nature,  they  must  mean  that  it  would  be  so  after  pro- 
perty is  once  established.*  The  same  opinion  is  enter- 
tained by  the  celebrated  Francisco  Suarez,  who  says  'Nam 
multa  sunt  dejure  naturali  quae  non  obligant,  nee  locum 
habent,  nisi  aliqua  suppositione  facta;  ut  praeceptum  non 
furandi,  non  habet  locum,  nisi  facta  divisione  bonorum  et 
dominiorum,'t  which  we  may  thus  render — For  there  are 
many  things  which  do  not  oblige  by  the  natural  law,  and 
have  no  place  in  it,  unless  in  a  given  state  of  things;  as  for 
example,  the  precept  'thou  shalt  not  steal,'  is  no  part  of 
that  law  until  after  the  institution  of  property. 

The  distinction  between  the  primary  and  secondary 
laws  of  nature,  imports  something  more  than  the  well 
known  difference  between  actions  mala  in  se,  and  those 
which  are  only  mala  prohibita.     But  in  what  the  dis- 

*  Taylor's  Civil  Law,  131.  f  Suarez  De  Leg.  lib.  2.  ca.  18. 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  355 

tinction  really  consists,  and  whether  the  jus  primarium  is 
confined  to,  or  extends  heyond  matters  bona  aut  mala 
in  se,  and  whether  the  jus  secundarium  is  restricted  to,  or 
affects  matters  beyond  what  are  merely  indifferent,  are  sub- 
jects by  no  means  clearly  explained  by  the  writers  on  na- 
tural law.     As  we  do  not  perceive  any  obvious  utility  in 
the  distinction  itself  as  far  as  it  has  been  explained,  I  shall 
for  the  present  at  least,  pass  it  by  with  a  single  remark; 
that  positive  laws,  even  when  they  regard  only  actions  na- 
turally indifferent,  create   nevertheless  a  moral  obligation 
to  their  strict  observance;  and  that,  although  actions  mala  in 
se  are  expressly  forbidden  by  the  law  of  God  and  man,  and, 
in  metaphysical  strictness,  the  obligation  to  avoid  them  is 
said  to  remain  the  same,  yet  there  can  be  no  doubt,  as  obli- 
gation is  generally  understood,  that  it  is  increased  by  multi- 
plying the  sanctions,  and  by  more  clearly  denning  them, 
than  under  the  jus  naturae. 

(10.)  The  Laws  of       We  are  now  to  consider  the  last  topick 
Nature  relate,  1:    to  ;         d  {qj.  the  present  lecture,  viz.  that 

man's  duty   to   him-  »  l 

self,  and  2:  to  his  du-  division  of  natural  jurisprudence  which 
ty  to  his  fellow  crea-  referg  a]]  the  jawg  of  nature  either  to 
tures;   and  all  these  ,  •      i  u* 

duties  are  referred  man's  duty  to  himself,  or  his  duty  to  his 
either  to  the  Absolute  feuow  creatures.  The  former  has  been 
or  Hypothetical  laws  „  ,  „   .    A . 

of  nature.  subdivided  into  five  classes  of  duties,  viz. 

1.  The  cultivation  of  his  moral  and  religious  nature.  2. 
The  improvement  of  his  intellectual  faculties  by  the  ac- 
quisition of  all  useful  knowledge.  3.  The  preservation 
of  the  health  of  his  body  and  mind.  4.  The  honest  ac- 
quisition of  property,  and  5.  The  pursuit  of  salutary  plea- 
sure. In  regard  to  the  whole  of  these  duties,  it  may  be 
remarked,  that  every  act  by  which  these  several  ends  are 
promoted,  has  its  peculiar  gratification  independent  of  the 
particular  object  in  view,  and  that,  when  combined,  they 
constitute  a  scheme  of  varied  felicity  which,  while  our  du- 
ties leave  no  pause   in  our  exertions,  and  permit  no  waste 


356  OF    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

of  a  particle  of  time,  is  amply  sufficient  to  refute  the  no- 
tion entertained  by  some,  that  our  existence  is  gloomy  or 
even  indifferent.  Heaven  bestows  on  the  energetick  toiler 
through  life,  abundant  recompense,  even  here,  for  every 
privation  and  every  enterprise. 

The  latter  branch  of  man's  duties,  viz.  his  obligations  to 
his  fellow  creatures,  has  also  been  subdivided  into  classes, 
viz.  1.  Such  as  are  absolute,  that  is  such  as  oblige  all  men 
in  all  countries,  and  independently  of  all  human  laws  and 
institutions,  and  2.  Such  as  are  hypothetical,  that  is,  such 
as  arise  after  the  establishment  of  society,  but  which  are 
nevertheless  founded  on  the  condition  of  mankind  consi- 
dered in  general,  and  which  are  also  not  the  creation  of 
mere  positive  law. 

We  are  first  to  examine  into  the  five  classes  of  duties 
which  man  owes  to  himself;  and  secondly,  into  the  two 
classes  of  duties,  viz.  absolute  and  hypothetical,  which  he 
owes  to  his  fellow  creatures. 

1.  Man  is  said  to  be  under  a  moral  obligation  to  culti- 
vate to  the  utmost  extent  of  his  power,  that  social  and  re- 
ligious nature  which  so  eminently  distinguishes  him  from 
every  other  animal,  and  binds  him  by  the  most  tender  re- 
lations to  his  species,  whilst  it  enables  him  to  hold  commu- 
nion with  his  Creator. 

The  cultivation  of  religious  and  social  affections  contri- 
butes largely,  not  only  to  our  own  happiness,  but  to  that  of 
others.  Were  all  men  religious  and  social,  they  have  in- 
telligence enough  to  render  legislation  almost  useless.  He 
is  sure  to  be  a  good  citizen,  who  respects  religion,  and  va- 
lues the  happiness  of  others;  otherwise  the  highest  intel- 
lectual attainments,  so  far  from  conferring  happiness  on 
ourselves  or  on  others,  are  only  so  many  instruments  of 
misery  to  ourselves,  and  mischief  to  others.  The  first 
duty  in  life,  therefore,  is  to  cultivate  the  most  exalted  re- 


Lect.  VIII. 'J  OF    THE    LAWS    OF    NATURE.  357 

verence  for  the  Supreme  Being,  and  the  most  expansive 
benevolence  towards  our  own  species. 

2.  A  duty  next  in  importance,  is  the  acquisition  of  eve- 
ry species  of  useful  knowledge.  In  all  the  relations  of 
life,  knowledge  renders  us  happier,  and  gives  to  religion 
and  benevolence  their  proper  direction.  A  highly  embel- 
lished mind  is  apt  to  be  a  generous  one;  it  renders  its  pos- 
sessor a  kind  and  discriminating  parent,  a  prosperous  and. 
be.loved  master,  a  tender  and  judicious  husband,  and  an  in- 
dustrious and  efficient  citizen. 

Whatever  may  be  our  talents,  whether  for  command  or 
obedience,  whether  various,  or  limited  to  a  single  point,  it 
is  our  duty  to  improve  them.  Mrs  Barbauld  has  judici- 
ously remarked,  that  mature  is  much  too  frugal  to  heap  to- 
gether all  manner  of  shining  qualities  in  one  glaring  mass.' 
It  is  our  duty,  therefore,  to  cultivate  with  assiduity  the 
particular  talent  which  nature  seems  specially  to  have  de- 
signed as  the  individual  means  of  our  usefulness.  Nature 
has  endowed  most  men  with  some  predominant  capacity, 
and  a  correspondent  inclination,  for  a  particular  pursuit. 
The  various  apportionment  of  talent  to  which  I  allude, 
seems  to  indicate  our  duty  in  this  respect,  and  renders  it 
almost  criminal  to  devote  our  lives  either  to  idleness,  or  to 
the  pursuit  of  useless  knowledge.  The  soil  of  the  human 
mind  when  permitted  to  lie  waste,  or  when  cultivated  in  a 
manner  not  adapted  to  its  particular  nature,  must  produce  a 
moral  vegetation  not  useful  but  baaeful.  Learning  itself 
should  keep  in  view  a  defined  and  useful  object,  and  be 
made  ancillary  to  those  virtues  and  graces  for  which  it 
never  can  be  a  substitute.  Knowledge,  which  is  only  the 
ornament  of  good  sense,  and  the  efficient  agent  of  wisdom, 
is  powerless  without  them.  'A  mere  scholar,'  says  Epic- 
tetus,  'is  an  animal  that  all  the  world  laughs  at;'  and  Quinc- 
tilian  sensibly  remarks,  that  'prudence  can  do  more  with- 
out learning,  than   learning    without   prudence.'     Whilst. 


358  OP    THE    LAWS    OF    NATURE.  [Lect.  VIII. 

therefore,  a  richly  cultivated  understanding  greatly  en- 
larges our  means  of  usefulness,  the  foundation  of  all  educa- 
tion should  be  laid  in  good  morals,  and  in  sound  sense. 

Knowledge  may  be  divided  into  three  classes,  viz.  the 
Useful,  the  Curious,  and  the  Insignificant.  In  the  acquisi- 
tion of  the  first  two,  we  may  be  profitably  and  honourably 
engaged:  the  last  may  be  consigned  to  the  incurably  idle, 
and  is  at  best  but  a  less  mischievous  mode  of  wasting  ta- 
lent. The  mischief  done  to  true  science,  and  sound  morals, 
by  insignificant  or  vain  learning,  has  been  great;  and  the 
history  of  learning,  and  of  learned  men,  furnishes  innu- 
merable curious  examples  of  genius  and  toil  strangely  and 
unhappily  misapplied.  How  often  do  such  men  bring  a 
reproach  on  true  philosophy  by  their  idle  speculations,  and 
their  surprising  ignorance  of  the  business  and  utilities  of 
life!  'I  hate  men/  said  an  ancient  sage,  'who  are  philoso- 
phers in  opinion,  and  drones  in  business. ' 

The  learning  of  the  present  age,  however,  is  liable  to 
but  little  of  this  reproach,  and  is  daily  becoming  less  so. 
It  is  far  from  my  intention  to  inculcate  in  the  students' 
mind  a  distrust  of  all  knowledge,  the  utility  of  which  is 
not  obvious  to  him  at  the  first  glance.  I  mean  rather  to 
express  my  respect  for  those  philosophers  whose  investi- 
gations, though  minute  and  various,  have  never  been  tri- 
fling; and  to  reprobate  those  whose  lives  have  been  spent 
in  spinning  webs  for  posterity  to  disentangle;  those  to 
whom  Martial  alludes  in  one  of  his  epigrams: 

'  'Tis  shameful  men  should  needless  knots  invent, 
To  prove  laboriously  impertinent;' 

and  those  aimed  at  by  another   poet,  when  he  speaks  of 
men  who 

1 tread  on  flowers  of  taste, 


Yet  stoop  to  pick  the  pebbles  from  the  waste, 
Profound  in  trifles,  they  can  tell  how  short 
Were  Esop's  legs,  how  large  was  Tully's  wart.' 


Lect.  VIII.]  OF    THE    LAWS    OF    NATURE.  359 

And  to  this  class  of  men  Lord  Bolingbroke  alludes  when 
he  says,  'I  would  rather  take  Darius,  whom  Alexander  con- 
quered, for  Darius  Hystaspes,  and  make  as  many  anachro- 
nisms as  a  Jewish  chronologer,  than  sacrifice  half  my  life 
in  collecting  all  the  learned  lumber  that  fills  the  head  of 
an  antiquary.' 

3.  The  next  class  of  duties  which  we  owe  to  ourselves, 
regards  the  preservation  of  our  health  of  body  and  of  mind. 
This  is  a  duty  closely  connected  with  those  we  have  al- 
ready mentioned,  since  without  health,  nothing  great  or 
excellent  can  be  expected  from  the  capacities  of  either 
mind  or  body. 

Nothing,  at  first  view,  would  appear  more  unnecessary 
than  to  urge  upon  men  the  moral  obligation  of  taking  care 
of  their  health,  seeing  that  self-preservation  is  so  natural 
to  all  animals.  It  is  however  a  melancholy  truth,  that  this 
dictate  of  nature  is  constantly  disregarded.  Men  are  often 
utterly  reckless  of  the  condition  of  body  and  mind;  and 
even  when  they  desire  health  and  happiness,  have  neither 
firmness  nor  principle  sufficient  to  resist  the  force  of  their 
passions.  They  forget  that  the  body  is  no  more  their  own, 
than  is  the  mind,  and  that  the  former  is  given  in  trust  to 
the  latter;  they  forget  the  sacred  nature  of  that  trust,  and 
sometimes  justify  even  suicide,  under  the  idle  notion  that 
man  has  an  absolute  right  over  his  own  body.  This  flim- 
sy argument  has  been  used  by  learned,  and  even  moral 
men,  in  ancient  times;  and  others  of  our  own  day  have  not 
scrupled  to  disapprove  of  the  odium  attached  to  the  act, 
and  of  the  legal  penalties  by  which  it  has  been  so  justly 
reprobated. 

The  perversity  of  man  is  such,  that  the  strongest  en- 
couragements and  denunciations  of  the  law  are  often  need- 
ed to  deter  them,  if  not  from  self-immolation,  at  least  from 
a  criminal  disregard  to  the  means  of  preserving  their  men- 
tal and   physical   powers.      And  though  it  is   the  general 


360  OF    THE    LAWS    OF    NATUR*.  [Lect.  VIII 

policy  of  governments  to  take  no  cognizance  of  private 
vices,  but  to  punish  only  such  open  crimes  as  by  their  ex- 
ample may  become  prejudicial  to  others,  it  is  sometimes 
necessary  to  go  beyond  this  principle,  and  to  extend  the 
incitements  and  comminations  of  the  law  to  such  habits 
and  conduct  as  affect  rather  the  private  individual  than  the 
citizen,  and  the  domestic  rather  than  the  political  relation. 
4  and  5.  The  honest  acquisition  of  property,  and  the 
innocent  pursuit  of  pleasure,  are  also  duties  which  every 
man  owes  to  himself.  On  the  highest  authority,  he  is  de- 
clared to  be  'worse  than  an  infidel,  who  provides  not  for 
his  own;'  and  all  must  agree  that  neglect  to  provide  for 
himself,  is  at  least  equally  reprehensible.  By  the  honest 
and  industrious  pursuit  of  gain,  we  avoid  the  numerous 
evils  incident  to  idleness,  that  daughter  of  foil}',  sister  of 
vice,  and  mother  of  misfortune,  as  an  eastern  writer  beau- 
tifully expresses  himself.  Our  present  are  not  our  only 
wants:  when  disease  and  old  age  assail  us,  we  are  no  longer 
able  to  toil,  and  must  lie  down  in  misery  and  want,  or  be- 
come burdensome  to  others,  if  in  the  season  of  health  and 
youth  we  have  neglected  to  lay  up  for  the  future.  It  is 
consequently  manifest  that  we  sin  against  others,  as  well 
as  ourselves,  if  we  fail  to  acquire  property,  or  the  means 
of  a  comfortable  subsistence  now,  and  for  the  day  when  we 
can  no  longer  labour.  As  to  the  pursuit  of  innocent  plea- 
sures, it  may  be  remarked,  that  as  they  refresh  the  mind, 
and  enable  it  to  renew  with  undiminished  interest  its  va- 
rious occupations,  it  is  but  a  means  of  more  effectually  dis- 
charging our  duties,  and  consequently  becomes  itself  a 
duty.  What  merit  has  the  solitary,  who  knows  life  only 
as  a  scene  of  gloom,  or  who  shuns  it  as  being  full  of  crimi- 
nal pleasures,  abandoning  society  lest  he  may  possibly  be 
betrayed  into  a  guilty  participation  of  them?  Such  a  dis- 
position is  a  disease,  fatal  to  the  happiness  of  its  possessor, 
and   may  prove  extremely   injurious  to   society   at   large. 


Lect.  VIII  j  OF    THE    LAWS    OF    NATURE.  361 

Most  of  the  pleasures  of  life  are  essentially  innocent;  it  is 
their  abuse  that  renders  them  vices;  and  he  is  the  sound- 
est philosopher,  as  well  as  the  best  moralist,  and  truest  chris- 
tian, who,  amidst  the  toils  and  temptations  of  life,  cheers 
his  heart,  and  renovates  his  mind,  by  the  moderate  use  of 
all  the  blessings  and  innocent  gayeties  which  appertain 
to  it. 

We  are  now  to  advert,  in  the  second  place,  to  that  class 
of  duties  which  we  owe  to  our  fellow  creatures;  which,  as 
we  have  stated,  are  either  absolute,  that  is  obligatory  on  all 
men,  at  all  times,  and  independently  of  all  human  institu- 
tions; or  hypothetical,  that  is,  consequent  on  the  establish- 
ment of  society  and  its  various  regulations,  though  they 
are  not  the  mere  offspring  of  positive  enactments,  but  are 
founded  on  the  condition  of  man  in  general. 

The  absolute  duties  and  rights  of  man  have  been  hereto- 
fore  sufficiently  explained;  and  those  hypothetically  en- 
joined, have  also  been  remarked  on.  We  have  here  only 
to  state,  as  illustrative  of  this  latter  class  of  duties,  that  as 
nature  does  not  actually  institute  property,  and  as  it  does 
not  necessarily  arise  from  society  and  laws,  since  property 
may  exist  independently  of  them,  and  they  may  also  exist 
without  property,  the  right  of  property,  and  the  duties  ap- 
pertaining thereto,  are  said  to  be  hypothetical.  After  pro- 
perty has  been  established,  the  rights  and  duties  which 
respect  it,  are  protected  by  the  law  of  nature;  but  these 
rights  and  duties  are  not  absolute,  for  the  reason  just  given. 
They  are  moreover  to  be  distinguished  from  rights  merely 
positive  or  legal;  for  duties  hypothetically  enjoined  by  the 
law  of  nature,  are  such  as  cannot  have  an  actual  existence 
in  a  state  of  nature,  though  they  are  entirely  consonant  to 
the  design  of  nature.  In  fine,  hypothetical  duties,  though 
different  from  those  which  arise  merely  out  of,  and  which 
are  sustained  only  by  positive  civil  laws,  may,  however, 
be  referred  to  both  sources,  in  the  same  way  as  absolute 
46 


362  OF    THE    LAWS    OF    NATURE.  LLect.  VIII. 

duties,  which  are  often  the  subjects  of  direct  legislation  in 
all  policed  communities. 

We  have  now  concluded  the  view  we  designed  of  the 
Natural  State  of  Man,  and  the  rights  and  obligations  ap- 
pertaining to  it;  of  the  origin  of  the  Civil  State,  and  its 
fitness  to  promote  the  great  design  of  nature,  the  happiness 
and  dignity  of  man;  and  lastly,  of  the  just  influence  of  the 
laws  of  nature  on  man,  after  the  establishment  of  political 
society  and  laws. 

This  terminates  our  inquiry  into  ethical  and  metaphy- 
sical jurisprudence. 

In  the  ensuing  lecture  I  shall  treat  of  the  nature  of  the 
Political  and  Civil  sjtates;  of  a  Constitution;  and  of  the  va- 
rious Forms  of  Government  in  ancient  and  modern  times: 
after  which  I  shall  draw  your  attention,  in  a  few  lectures, 
to  a  system  of  polity,  not  only  very  peculiar  in  itself,  but 
immediately  connected  with,  and  indeed  originative  of, 
that  large  portion  of  English  jurisprudence  called  the 
Common  Law.  I  allude  to  the  Feudal  system,  a  form  of 
government  which  pervaded  Europe  during  many  centu- 
ries, and  the  remains  of  which  will  probably  endure  as  long 
as  time.  We  are  pleased  at  the  prospect  of  soon  arriving  on 
solid  ground,  hoping,  however,  that  the  foregoing  casuistical 
and  metaphysical  prelections  have  not  been  useless,  either 
in  recalling  your  attention  to  what  you  may  have  previous- 
ly read  on  those  topicks,  or  in  awakening  it  to  the  necessity 
of  deeper  research  into  many  points  which  have  been  so 
learnedly  and  cunningly  discussed  by  some  of  the  writers 
on  natural  law. 


LECTURE  IX. 


OF  POLITICAL,   AS  DISTINGUISHED  FROM  CIVIL  LAW;  AND  OF 
THE  VARIOUS  FORMS  OF  CIVIL  GOVERNMENT. 

(l.)  Of  Political       The  regulations  by  which  nations  aim 

Law,  what  it  is,  and  ,  ,,     .  ,  ,  j 

how      distinguished  to   secure   the,r  order  and  S0od   g°vern- 

from  Civil  Law.   Po-  ment,  are  divisible  into  two  great  classes: 

litical  state,  how  dif-  th    Qne  comprehending  those  rules  which 

ferent     from     Civil  r  ° 

State.  concern  the  body  of  the  nation  itself,  its 

form  of  government,  and  the  manner  in  which  the  publick 
authority  is  partitioned;  all  of  which  fundamental  rules 
constitute  what  are  denominated  the  Political  Laws:  the 
other  embracing  those  which  concern  the  conduct  of  citi- 
zens among  themselves,  or  towards  the  state;  and  these  are 
called  the  Civil  Laws.  Corresponding  to  these  two  classes 
or  systems  of  law,  there  are  certain  fictitious  entities  re- 
sulting from  these  distinct  kinds  of  laws,  and  which  have 
taken  the  names  of  Political  and  Civil  States. 

In  defining  and  distinguishing  these  states,  the  one  from 
the  other,  Montesquieu  (not  with  strict  propriety,  we 
think,)  has  chosen  to  adopt  Gravina's  definitions. 

According  to  Gravina,  'the  conjunction  of  the  particular 
forces  of  individuals  constitutes  the  political  state;  whilst 
the  conjunction  of  the  wills  of  those  individuals  forms  the 
civil  state.'  These  definitions  we  think  are  somewhat  ob- 
jectionable. 

It  may  be  admitted  that  the  prominent  features  which 
mark  these  two  states,  are,  as  Gravina  and  Montesquieu 


364  OF    THE    FORMS    OF    GOVERNMENT.  [Leet.  IX. 

have  stated,  viz.  that  the  one  refers  to  the  executive,  or 
united  forces  of  the  members  of  a  community;  the  other  to 
the  legislative,  or  united  wills  of  those  individuals.  But 
we  apprehend  that  this  is  not  going  sufficiently  far.  The 
political  state  must  be  considered  as  co-extensive  with  the 
political  laws,  and  the  civil  state  with  the  civil  laws.  Now 
the  political  and  civil  laws  often  relate  to  matters  which  do 
not  exclusively  regard  the  joint  force,  or  the  joint  will. 
By  political  laws  we  are  to  understand,  not  merely  such  as 
relate  to  the  joint  force,  but  all  those  which  relate  to  the 
organization  and  conduct  of  the  body  politick;  those  fun- 
damental and  constitutional  laws  which  direct  the  nation, 
as  far  as  they  are  not  embraced  by  a  distinct  branch  of 
laws,  called  the  laws  of  nations,  and  which  regulate  inter- 
national communion.  Political  laws,  therefore,  may  relate 
indiscriminately  to  matters  of  executive,  legislative  and 
judicial  conduct.  Those  laws  which  give  rise  to  the  form 
and  constitution  of  government,  and  those  which  establish 
the  obligations  of  a  community,  and  of  its  publick  func- 
tionaries, constitute  a  part  of  the  political  state;  yet  many 
of  them  may  have  no  relation  whatever  to  the  wielding  of 
the  united  forces.  So,  again,  the  constitution  itself  may 
establish  many  things  expressive  of  the  united  will  only, 
and  yet  these  would  be  classed  with  the  political  laws,  and 
properly,  because  they  establish  the  relation  between  the 
body  politick  and  the  members  of  which  it  is  composed; 
whereas  civil  laws  relate  to  the  conduct  of  citizens  towards 
each  other,  and  of  the  citizen  towards  the  state. 

The  political  state,  therefore,  must  result  from  the  whole 
of  the  political  laws,  and  not  merely,  as  Gravina  says, 
from  such  as  establish  the  duties  and  rights  of  the  body  po- 
litick in  relation  to  the  joint  force.  So,  likewise,  the  civil 
state  must,  we  apprehend,  be  commensurate  with  the  civil 
laws;  and  though  some  of  these  laws  may  define  obligations 
due  by  the  citizen  to  the  state,  as  in  the  payment  of  taxes, 


Lect.  IX.]  OP    THE    FORMS    OF    GOVERNMENT.  365 

duties,  &c.  yet  these  are  as  much  civil  laws,  and  as  much 
regard  the  civil  state,  as  those  which  relate  to  the  rights  and 
duties  between  citizen  and  citizen.  From  the  whole,  then, 
it  would  appear  that  the  meaning  applied  by  these  two 
eminent  political  philosophers  to  the  expressions  'political 
state,'  and  'civil  state,'  is  too  restricted,  and  that  they  are 
coextensive  with  those  two  species'  of  laws. 
(2.)    Of  the  exer-       ^he  fundamental  regulations  which  de- 

cise  of  governmental  termine    the    manner    of    executing   the 

Dower  rclcitivG  or  not 

to  the' constitutional  Publick  authority,  and  which  define  the 

and  fundamental  laws  relation  between  the  political  body  and 

ofta  state:    of  the  its  members,  are  what  form  the  Consti- 
nature  and  objects  of  7 

a   Constitution,  and  tution  of  a  state.     These  point  out  and 

how  affected  by  the   fix  thfJ  jj^  0f  authority    whether  legis_ 

physical  condition  ot  ■"  ° 

the  governed:  And  of  lative,  executive  or  judicial:  they  deter- 

the  necessity  of  laws   mine  jn  w^at  functionaries  it  is  to  be  re- 
varying  with  the  great 
and  radical  changes  posed;  in  what  manner  it  is  to  be  exer- 

iu  the  genius  of  a  cised;  and  to  what  subjects  it  is  to  ex- 
tend. In  the  language  of  Vattel,  'a  con- 
stitution is  in  fact  nothing  more  than  the  establishment  of 
the  order  in  which  a  nation  proposes  to  labour  in  common, 
for  obtaining  those  advantages  with  a  view  to  which  the 
political  society  was  founded.'* 

It  is  somewhat  surprising  that  although  government  be 
the  most  important  and  admirable  of  all  sciences,  it  has 
been  the  least  perfectly  understood,  and,  in  regard  to  its 
ac-tual  exercise,  is  yet  far  from  perfection.  A  subject 
which  has  called  forth  the  best  exertions  of  some  of  the 
master  geniuses  of  antiquity,  as  Plato,  Aristotle,  Socrates, 
Cicero  &c,  and  the  persevering  thought  and  research  of 
many  distinguished  moderns,  as  Bacon,  More,  Locke,  Sid- 
ney, Harrington,  Montesquieu,  Machiavel  and  others,  ne- 
vertheless   remained,    almost    to    our   own    days,    confes- 


*  Vattel's  Law  of  Nations,  Book  1,  ch.  3. 


360  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

sedly  in  its  infancy,  especially  as  a  practical  science.  The 
great  desideratum,  however,  which  is  to  be  now  attained, 
is  not  so  much  the  science  as  the  art  of  true  government. 
The  philosophy  of  political  rule  is  in  this  age  much  better 
understood  than  in  any  preceding;  but,  like  many  theore- 
tical improvements  in  regard  to  man's  intellectual  and  phy- 
sical condition,  it  is  slow  in  being  reduced  to  practice,  and 
must  be  ripened  and  matured  by  the  gradual  influence  of 
times  and  circumstances,  and  the  growing  virtues  and  intel- 
ligence, no  less  of  the  people,  than  of  those  in  power,  be- 
fore its  excellences  are  fully  perceived  and  practised.  It 
is,  indeed,  wonderful  at  first  view,  that  of  a  subject  in 
which  men's  happiness  is  so  largely  involved,  even  the  first 
principles  should  have  so  long  remained  either  wholly  un- 
known, or  greatly  obscured;  and  that,  after  so  many  thou- 
sand experiments,  some  forms  should  not  have  been  de- 
cided on  as  the  best,  and  been  very  generally  adopted. 

Were  we  to  allow  the  variety  of  existing  and  past  forms 
and  constitutions  of  government,  to  argue  the  sentiments 
of  mankind  in  regard  to  this  subject,  we  might  suppose 
those  sentiments  to  be,  indeed,  infinitely  various.  But 
widely  different  as  their  practice  has  been,  it  is  to  be  re- 
membered that  the  lust  of  power  has  left  to  few  people  the 
free  expression  of  their  choice;  that  necessity  has  created 
a  thousand  systems  of  rule,  which  philosophy  and  common 
sense  see  the  propriety  of  reforming,  while  circumstances, 
and  'custom  grown  blind  with  age,'  render  change  dange- 
rous, or  perhaps  impossible.  We  should  also  remember 
that  of  existing  systems  of  polity,  most  have  been  brought 
to  subserve  the  interests  of  the  people  only  by  dint  of  in- 
numerable efforts  and  contrivances,  which  have  assaulted 
or  mined  the  citadel  of  power;  and  that  when  nations  start 
from  so  many  different  points,  even  if  they  always  held  in 
view  the  same  end,  they  would  naturally  stop  short  at  dif- 
ferent stages  of  their  progress,  either   from  ignorance  of 


Lect.  IN.  j  OF    THE    FORMS    OF    GOVERNMENT.  367 

their  road,  or  from  the  obstacles  which  impede  it.  Thus, 
then,  if  even  the  same  species  of  government  would  suit 
all  people  alike,  there  are  obvious  causes  in  the  actual  cir- 
cumstances of  mankind,  why  they  should  differ  so  greatly 
in  their  modes  of  political  rule. 

Among  the  circumstances  which  have  been  supposed  to 
exercise  a  powerful  control  over  the  forms  of  government, 
the  varieties  in  the  moral  and  physical  condition  of  man 
have   been  often   mentioned.     Nations,  like    individuals, 
have  their  temperaments,  which  give  rise  to  correspondent 
systems  of  government  and  laws.     So,  also,  with  nations 
as  with  individuals,  the  mere  accidents  of  life  give  a  direc- 
tion to  their  future  destiny.     War,  trade,  agriculture,  sci- 
ence or  ignorance,  according  as  they  form  the  particular  ob- 
ject or  condition  of  a  community,  will  render  one  form  of 
government  more  likely  to  occur,  and  more  suitable  to  their 
condition  and  inclinations,  than  another,  since  the  prompti- 
tude and  vigour  which  characterize  a  monarchy,  for  exam- 
ple, are  very  proper  for  an  ambitious  or  warlike  people, 
while  they  are  actually  detrimental  to  the  views,  and  in- 
consistent with  the  spirit  of  a  nation  devoted  to  traffick. 
Great  Britain  furnishes  no  exception  to  this  doctrine.     She 
is  commercial,  and,  in  a  degree,  warlike;  but  neither  is  her 
government  a  monarchy,  nor  can  it  be  regarded  as  ambi- 
tious: her  predominant  spirit  is  rather  mercantile  than  war- 
like;  and   her  government,  both  in  theory  and  practice, 
much  more  republican  than  monarchical,  or  even  aristocra- 
tick.      So  far,  indeed,  from  that  country  forming  an  excep- 
tion to  the  doctrine  we  have  stated,  it  appears  to  us  that  no 
stronger  example-  can  well  be  given  of  a  nation  whose  gov- 
ernment and*  laws  have  more  strictly  conformed  to  the  spi- 
rit of  her  people,  and  varied  with   the  different  tempera- 
ments which  circumstances  have   occasioned  through   the 
lapse  of  ages.      Every  feature  in  her  constitution  and  laws 
seems  promotive  of  her  natural  tendency  towards  a  limited 


368  OP    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

warlike  spirit,  a  limited  ambition,  and  a  thirst  for  trade  and 
commerce  which  knows  no  bounds. 

Hence,  however  sages  may  agree  as  to  the  most  proper 
and  virtuous  pursuits  of  a  nation,  we  may  discover  in  what 
we  have  stated,  a  powerful  cause  of  the  great  variety  of 
choice  and  opinion  exhibited  by  communities  in  their  forms 
of  government;  since  they  naturally  fall  into  that  form 
which  corresponds  to  their  particular  dispositions  and  man- 
ners; to  say  nothing  of  those  to  which  their  ill  fortune  re- 
duces them,  when  luxury  or  vice  or  ignorance  has  rendered 
them  incapable  of  publick  spirit,  and  made  them  prone  to 
an  indolent  subservience  to  accidental  rule. 

In  every  policed  community  there  are  three  powers  or 
authorities  necessary  to  its  constitution  and  preservation, 
viz.  the  power  of  making  laws,  that  of  interpreting  them, 
and  that  of  executing,  or  appointing  those  who  execute 
them.  These  are  commonly  termed  the  Legislative,  Judi- 
cial and  Executive  authorities.  Aristotle  denominates  that 
branch  the  appointing  power,  which  we  term  the  executive; 
and,  as  his  commentator  remarks,  'with  propriety,  inas- 
much as  it  is  generally  a  very  small  part  of  the  duty  of  that 
member  of  the  government  to  see  to  the  immediate  execu- 
tion of  laws,  its  prerogative  being  chiefly  in  appointing 
those  who  do.'* 

Now,  whenever  a  state  departs  from  that  simple  modifica- 
tion of  government  which  unites  all  these  powers  in  one 
person  or  body;  when  it  distributes  them  among  different 
individuals  or  bodies,  with  a  view  to  save  them  from  abuse; 
we  at  once  perceive  how  the  forms  of  government  may  be 
infinitely  varied,  although  the  aim  and  spirit  of  all  may  in- 
deed be  essentially  the  same.  Athens,  Carthage,  Rome, 
Venice,  and  the  confederated  states  of  America;  all  repub- 
lic];?, all  jealous  of  liberty;   how  different  the  distribution 

*  C  Gill.  Aris.  I 


Lect.  IX.]  OP    THE    FORMS   OP    GOVERNMENT.  369 

which  they  made  of  their  powers,  in  order  to  preserve 
something  like  a  balance,  and  to  prevent  abuse  or  encroach- 
ments in  any!  These  ancient  states  have  shown  us  a  truth 
equally  clear  and  melancholy;  that  while  a  sound  spirit  and 
good  morals  may  preserve  the  worst  forms  of  rule  from  the 
evils  of  which  they  are  naturally  productive,  the  best  have 
been  unable  to  save  the  community,  when  the  springs  of 
the  machine  were  weakened  by  vice,  and  impeded  by  cor- 
ruption. Such,  then,  are  the  chief  causes  which  have 
produced  the  infinite  variety  of  governments  among  man- 
kind. 

It  would  be  difficult,  perhaps  impracticable,  to  decide  to 
what  degree  all  nations  are  capable  of  a  more  extended  liber- 
ty than  they  have  for  the  most  part  enjoyed:  whether,  in  short, 
the  perfectibility  of  man,  (to  use  a  modern  phrase  and  idea,) 
will  ever  be  so  sufficiently  and  practically  demonstrated, 
that  the  people  would  every  where  be  benefited  by  being  al- 
lowed a  voice  in  the  government.  Strange  that  they  should 
not!  since  the  institution  of  all  government  and  laws  was 
for  their  sake.  Strange,  indeed,  is  it  that  what  is  so  mani- 
fest in  theory,  should  be  so  often  false  in  practice!  Whe- 
ther it  is  that  their  governments  debase  them,  or  that,  as 
has  been  often  seriously  contended,  they  require  base  and 
absurd  governments,  certain  it  is  that  the  scheme  of  politi- 
cal rule  to  which  they  have  in  almost  all  ages  and  countries 
submitted,  and  still  more  the  unhappy  use  which  they  have 
so  often  made  of  their  natural  and  political  rights,  have  cast 
a  doubt  on  a  question  which,  on  abstract  principles,  will 
admit  of  none.  But  leaving  this  question  to  the  solution 
of  the  present  or  approaching  times,  our  business  is  to  con- 
template for  a  moment,  the  adaptation  of  governments  to 
the  actual  circumstances  of  a  people,  their  predominant 
spirit  or  character,  and  the  radical  mutations  which  they 
undergo.  That  the  philosophical,  but  too  generalizing  au- 
thor of  the  'Spirit  of  Laws'  has  carried  his  principle  on 
47 


370  OP    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

this  topick  a  good  deal  too  far,  cannot  be  doubted,  even  by 
his  most  zealous  admirers. 

That  nations,  as  we  actually  find  them,  are  very  differ- 
ently fitted  for  the  enjoyment  of  a  free  polity,  is  too  abun- 
dantly manifest  from  all  past  and  present  experience.  That 
climate,  habits,  pursuits,  customs,  and  all  the  varieties  of 
education,  whether  moral,  physical  or  intellectual,  are  cir- 
cumstances which  impart  to  nations,  as  well  as  individuals, 
a  certain  temper  more  or  less  adapted  to  a  liberal  govern- 
ment, cannot  be  questioned.  Yet  these  may  so  counter- 
vail and  equipoise  each  other  in  all  places,  that  although 
we  allow  them  much  consideration,  yet  when  we  find  the 
enlightened  author  of  the  'Spirit  of  Laws'  excluding  from 
the  possibility  of  free  institutions,  all  nations  inhabiting 
warm  and  luxurious  climates,  and  basing  his  opinion  on  the 
relaxed  state  of  their  fibres,  and  the  circumstance  of 
bread  procured  without  labour,  we  can  scarce  repress  a 
smile,  especially  when  we  find  him  acknowledging,  in  his 
aphoristical  manner,  that  while,  on  the  one  hand,  the  delica- 
cy of  their  organs  makes  them  dread  labour  and  death,  it  im- 
parts an  imagination  so  lively,  that  they  shun  a  thousand 
things  more  than  either  labour  or  death.  It  is  strange  that 
the  spirit  of  theory  should  mislead  so  close  a  reasoner,  and  so 
profound  a  thinker;  and  that  one  who  sought  with  earnest- 
ness for  every  operative  cause,  should  yet  erect  so  vast  a 
structure  on  so  slender  a  foundation.  Does  not  the  charac- 
ter of  the  Arab  tribes,  dwelling  under  a  burning  sun,  and 
yet  free;  and  that  of  the  Tartar  tribes,  inhabiting  the  frigid 
and  barren  table  lands  of  Asia,  and  yet  slaves;  show  us  con- 
clusively how  uncertain  are  his  broad  deductions  from  cli- 
mate? Undoubtedly  legislators  have  their  peculiar  difficul- 
ties in  all  climates  and  countries,  arising,  too,  from  causes 
peculiar  to  those  countries  and  climates.  Still,  however, 
these  physical  circumstances  are  very  secondary,  and  far 
from  invincible.    It  seems,  therefore,  but  philosophical,  and 


Lect.  IX.]  OP    THE    FORMS    OF    GOVERNMENT.  371 

conformable  to  all  experience,  to  allow  that  moral  causes  are 
the  controlling  ones,  and  that  these  may  be  made  to  operate 
in  all  countries;  and  consequently  that  nature  (however  op- 
posed the  dispositions  of  her  sons  in  all  places  may  be  to 
the  dominion  of  reason,  and  of  just  government)  has  left 
none  of  them  hopeless  of  a  free  and  rational  policy. 

The  just  conclusion  from  what  we  have  said  on  this  sub- 
ject seems  to  amount  to  this;  that  the  moral  circumstances 
in  which  a  legislator  finds  his  people,  should  mainly  di- 
rect him  in  the  adaptation  of  his  government  and  laws  to 
their  necessities;  and  that  while  physical  circumstances 
ought  not  to  be  disregarded,  they  can  never  be  a  perpetual 
barrier  to  institutions  either  free  or  despotick.  On  this  point 
philosophy  and  history  concur;  for  we  know  that  in  the 
hottest  climates  men  are  neither  without  industry,  nor  des- 
titute of  spirit,  and  that  the  remark  of  Montesquieu  in  re- 
gard to  such  a  climate,  that  'slavery  is  more  supportable 
than  the  force  and  vigour  of  mind  necessary  for  human  ac- 
tion/ is  far  from  being  justified  by  history.  So,  also,  in 
the  most  fertile  regions,  property  may  be  so  divided  and 
regulated  that  labour  shall  always  be  requisite  for  a 
comfortable  subsistence;  whilst  in  the  most  barbarous,  re- 
ligion, as  it  is  good  or  bad,  may  soften  and  humanize,  or 
subject  to  servility  and  sloth.  In  the  free  and  but  half  civ- 
ilized nations,  which  arose  on  the  ruins  of  Rome,  supersti- 
tion produced  slaves  to  a  spiritual  father,  and  peopled  con- 
vents with  indolent  fanaticks;  but  that  this  superstition  and 
its  effects  did  not  spring  from  physical  causes,  is  too  mani- 
fest to  be  doubted  for  a  moment.  Innumerable  circum- 
stances, in  fact,  combine  to  form  the  character  of  a  nation; 
and  of  these  it  is  the  policy  of  wise  legislators  to  poise 
some  against  others,  in  the  confidence  that  nature  has  every 
were  provided  her  antidotes.  One  thing  is  obvious  enough, 
that  to  apply  to  all  nations  indiscriminately  even  the  form 
of  government  abstractly  the  best,  would  be  a  wild  and 


372  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

fatal  policy.  A  republick  in  Hindostan,  for  example,  ex- 
cites by  its  very  mention  an  emotion  of  ridicule,  since,  if 
at  once  established,  it  could  be  nothing  but  anarchy  among 
a  people  to  whom  nearly  all  just  principles  of  government 
are  unknown,  and  who,  from  an  immemorial  sera,  have 
been  slaves.  To  establish  a  complete  despotism  in  Chris- 
tendom would  also  be  next  to  impossible;  because,  remote 
as  too  many  of  the  European  polities  certainly  are  from 
just  principles  of  rule,  they  are  yet  sensible  enough  of  the 
rights  of  the  people,  however  unable  the  people  may  be  to 
assert  them  fully.  So,  again,  a  nation  ambitious  of  con- 
quest would  be  very  injudicious  to  select  a  republican  sys- 
tem, which  is  not  fitted  for  offensive  efforts,  and  is  but  too 
happy  to  be  capable  always  of  those  which  are  only  defen- 
sive. If,  on  the  other  hand,  the  people  be  frugal  and  con- 
tent with  little;  if  there  be  among  them  no  excessive  ine- 
quality of  estates;  they  will  be  likely  to  love  and  preserve 
republican  institutions;  while,  again,  too  great  a  scantiness 
of  food,  or  a  wandering  and  hunting  life,  will  be  apt  to  di- 
vide them  into  tribes,  and  subject  them  to  the  conduct  of 
petty  rulers.  If  wealth  and  its  consequent  power  be  in 
few  hands,  as  in  feudal  times,  a  republican  constitution 
would  be  practically  impossible;  for  who  are  to  preserve 
rights  to  a  people  who  are  themselves  incapable  to  assert 
them?  It  is  only  the  dream  of  political  enthusiasts  that 
has  found  in  Magna  Charta  a  bill  of  rights  for  a  people 
who  had  only  a  notional  existence.  It  was,  on  the  contra- 
ry, a  grant  of  privileges  to  a  powerful,  and  therefore  tur- 
bulent aristocracy.  In  the  history  of  Venice  we  find  these 
truths  practically  illustrated.  For  more  than  two  and  a 
half  centuries,  that  country  was  governed  by  a  pure  demo- 
cracy: this  was  in  its  infancy.  During  many  more  centu- 
ries, a  powerful  aristocracy  held  dominion,  and  sometimes 
respected  the  people;  and  often  a  wicked  oligarchy  was 
entirely  triumphant,  and  wholly  disregarded  their  claims. 


Lect.  IX.]  OP    THE    FORMS    OP    GOVERNMENT.  37& 

At  other  times  we  find  the  Doge  all  powerful,  and  the 
Senate  and  Council  his  subservient  instruments;  again,  the 
Doge  sunk  into  insignificance,  and  the  oligarchy  were  do- 
minant. In  all  these  various  mutations  w6  find,  (after  a 
close  inspection  into  their  history)  that  wealth  generated 
an  abundant  harvest  of  its  peculiar  political  evils;  whilst 
trade  and  commerce,  being  in  the  hands  of  all,  not  only 
banished  the  spirit  of  war  and  conquest,  but  so  diffused 
the  means  of  education,  and  of  at  least  comfortable  subsis- 
tence, that  the  people  were  of  sufficient  importance  to  have 
their  civil  liberties  generally  respected,  and  their  political 
liberty  often  acknowledged,  sometimes  in  substance,  but 
more  frequently  in  form  only.  The  influence  of  wealth 
and  noble  ancestry  was  at  all  times  very  great  in  Venice; 
but  the  inferior  orders,  being  neither  very  poor  nor  ignor- 
ant, were  not  fit  subjects  for  slaves.  During  the  whole  his- 
tory of  this  remarkable  nation,  at  least  during  a  period  of 
more  than  fourteen  centuries,  the  national  independence 
was  preserved  in  its  integrity,  and  the  people  were  free 
from  foreign  oppression.  Neither  the  Guelphs  nor  Ghi- 
bellines  were  sufficiently  powerful  to  destroy  her  political 
independence:  the  Vatican  thundered,  yet  the  Doge  and 
the  people  were  calm:  surrounding  nations  envied  yet 
feared.  Venice,  which  professed  to  be  ruled  mainly  for 
the  publick  good,  though  often  disturbed  by  intestine 
broils,  chiefly  about  the  succession  to  the  Doge,  (which, 
however,  were  rather  individual  contests  than  civil  wars,) 
enjoyed  for  ages  an  almost  unexampled  prosperity,  which 
excited  the  admiration  of  the  world,  and  is  still  regarded 
by  some  politicians  as  a  problem  of  no  easy  solution  in 
the  science  of  political  rule.  The  truth  is,  however,  that 
these  changes  were  the  natural  and  inevitable  result  of 
man's  moral  nature,  when  subjected  to  powerful  impulses. 
Venice  commenced  her  infant  career  under  the  influence 
of  two  principles  which  were  long  preserved,  and  never 


374  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

wholly  abandoned;  to  respect  the  rights  of  the  governed, 
and  neither  to  meddle  with  the  concerns  of  other  nations, 
nor  suffer  them  to  interfere  with  hers.  Her  commerce 
grew  out  of  circumstances;  and  wealth  and  time  created  a 
powerful  and  venerated  aristocracy.  Luxury  and  the  am- 
bition of  power  will  corrupt,  and  an  odious  oligarchy  ne- 
cessarily ensued;  the  people,  too  powerful  to  be  enslaved, 
would  struggle  for  their  rights;  and  thus  various  changes  in 
the  form  of  government  arose.  The  early  respect  for  the 
people,  and  the  hatred  of  monarchy,  would  for  ever  pre- 
vent its  open  establishment;  whilst  an  increase  in  the  po- 
pulation manifested  the  impracticability  of  continuing  that 
pure  democracy  with  which  the  state  commenced  its  career. 
Thus  was  it  that  in  the  history  of  this  interesting  people 
we  find,  in  substance  at  least,  nearly  every  form  of  govern- 
ment exemplified,  viz.  pure  and  simple,  pure  and  mixed, 
corrupt  and  simple,  corrupt  and  mixed;  in  fact,  democracy 
and  ochlocracy,  monarchy  and  tyranny,  aristocracy  and 
oligarchy;  and  also  various  combinations  of  each.  From 
this  it  appears  that  forms  of  government  and  constitutions 
may,  under  the  same  climate,  easily  vary  according  to  the 
changing  conditions  of  a  people;  and  that  they  all  take 
their  rise  chiefly  from  adequate  moral  causes,  and  may 
often  be  proper,  and  best  suited  to  the  particular  state  or 
condition  of  a  people.  It  is  also  a  principle  not  to  be  lost 
sight  of  by  legislators,  that  a  very  operative  cause  in  the 
production  of  national  character  itself,  is  to  be  found  in  the 
very  form  and  constitution  of  the  government;  for  who 
can  doubt  that  long  subjection  produces  and  strengthens 
the  spirit  of  slavery;  or  that  the  privilege  of  freedom  will 
originate  and  perpetuate  a  zeal  for  its  preservation,  and 
develope  the  best  means  of  guarding  it? 

Although  the  illustrious  author  of  the  'Spirit  of  Laws' 
was  not  insensible  to  this  principle,  he  has  not  sufficiently 
regarded  it  in  his  considerations  on  the  causes  of  slavery  in 


Leet.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  375 

Asia.  The  force  of  government  in  changing  the  spirit  of 
a  people,  is  made  sufficiently  obvious  by  contrasting  the 
ancient  inhabitants  of  Asia  Minor  and  Greece,  with  its 
modern  possessors.  The  same  physical  circumstances  are 
now  operative  as  then;   with  Byron  we  may  say, 

'Yet  are  their  skies  as  blue,  their  crags  as  wild, 
Sweet  are  their  groves,  and  verdant  are  their  fields; 
Their  olive  ripe,  as  when  Minerva  smil'd.' 

Change  is  the  fate  of  nations;  and  the  great  variety  of 
its  sources  is  among  the  infinite  reasons  why  all  the  policy 
of  the  wise  has  never  been  adequate  to  prevent  it. 

Having  explained,  in  a  general  way,  first,  the  nature 
and  object  of  a  constitution;  and  secondly,  how  far  the 
laws  should  be  relative  to  the  particular  genius  or  charac- 
ter of  a  people;  let  us,  thirdly,  bestow  a  few  words  on  the 
necessity  of  varying  the  constitution  and  laws,  to  suit  the 
radical  changes  which  often  take  place  in  the  dispositions 
of  a  people,  from  the  gradual  developement  and  expansion 
of  their  energies,  or  from  various  other  causes.  This 
change,  auspicious  to  nations  in  their  progress  to  refine- 
ment, as  it  is  fatal  in  the  periods  of  their  decline,  often 
renders  the  forms  of  polity  which  were  suitable  to  their 
infancy,  or  to  any  given  state,  not  only  insufficient  but 
intolerable  in  another.  The  feudal  system,  the  unavoida- 
ble growth  of  the  circumstances  of  the  times,  and  the  situ- 
ation both  of  the  conquerors  and  the  conquered,  impressed 
a  character  on  the  constitutions  which  arose  out  of  it,  which 
has  been  the  germ  of  the  fiercest  dissentions  during  seve- 
ral ages.  It  is  true  that  changes  have  been  wrought,  but 
they  have  either  been  the  fruit  of  formidable  strife,  or  the 
result  of  bungling  evasions  which  have  made  the  best  con- 
stitutions of  Europe  somewhat  clumsy  in  their  structure, 
and  the  text  of  very  opposite  constructions  to  discordant 
interests  and  passions.  You  will  have  occasion  to  remark 
in  the  history  of  the  English  Common  Law,  the  truth  of 


376  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX- 

what  has  been  just  stated.     You  will  there  perceive  the 
changes  which,  becoming  necessary  from  the   increasing 
importance  of  the   people,  converted  a  feudal  aristocracy, 
whose  king  was  no  more  than  a  powerful  peer  of  the  rest, 
into  a  government  worthy  of  a  free  people.      But  you 
will  likewise  see  that  they  have  left  the  structure,  conve- 
nient as  it  must  be  confessed  to  be  in  most  essential  re- 
spects, neither  very  symmetrical,  nor  always   very  judi- 
cious to  a  philosophical   eye.     How  many  calamities  had 
been  spared  to  the  British  nation,  had  the  Stuarts  been  sen- 
sible enough   of  the  necessity  of  accommodating  govern- 
ment to  the  advancing  refinement,  liberal  thought,  avidity 
of  freedom,  and  strength  to    assert  it,   which   sometimes 
grow   up  with  the  growth  of  nations,  and  which,  though 
they  be  not  a  resistless  torrent,  will  most  certainly  in  time 
end  in  the  correction,  if  not  the  total  abolishment,  of  all 
arbitrary  systems.      In  no  period  which  history  displays  to 
us,  is  the  force  of  this  doctrine  more  strongly  unfolding 
itself,  than  in  the  present  age,  and  at  this  very  time.     The 
georgicks   of  the   mind    have  become,    comparatively,   so 
universal  and  enlightening,  as  to  have  conferred  a  power 
on  the  people  which  must  be  heard  and  respected.     Neither 
the  stratagems  nor  the  force  of  rulers,  nor  the  remains  of 
former  habits  in  the  people,  can  check  this  march  of  free- 
dom:   the  mind,  redeemed  and  regenerated,  must  triumph 
over  the  artifices  of  tyranny,  in  whatever  form  they  may 
appear;  and  publick  opinion  will  in  all  countries  establish 
the  truth,  that  governments  and   laws  were  instituted  to 
make  the  people  happy,  and  not  to  make  the  rulers  distin- 
guished and  powerful. 

It  is  a  most  important  question,  (not  indeed  to  us,  for 
we  have  settled  it)  in  whom  do  the  right  and  the  power  of 
making  necessary  and  radical  changes  in  government  re- 
side? That  it  is  in  the  people,  we,  as  republicans,  assert  of 
course;  nor  can  we  be  made  well  to  understand  on  what 


Lect.  IX.]  OP    THE    RIGHTS    OE    GOVERNMENT.  377 

sensible  grounds  it  has  ever  been  denied.  Those  which 
have  been  taken  are  very  various,  but  need  not  be  stated, 
as  we  have  already,  in  a  previous  lecture,  said  all  perhaps 
that  is  requisite.  We  would  remark,  however,  that  it  is 
asserted  by  many  republican  writers,  that  government  is 
founded  on  a  contract  between  the  rulers  and  the  ruled; 
the  first  undertaking  the  care  of  rule,  in  consideration  of 
the  honour  and  advantages  of  the  station;  the  other  un- 
dertaking to  obey,  in  consideration  of  the  preservation  by 
these  rulers,  of  safety  and  good  order.  This,  however, 
is  not  exactly  in  coincidence  with  the  doctrine  of  the 
American  people;  they  look  on  the  body  politick,  that  is, 
the  people,  as  the  master,  and  the  rulers  as  the  servants  of 
the  people;  servants  amenable  to  censure,  subject  to  be  dis- 
placed, and  possessing  no  rights  which  can  set  them  above 
the  correction  of  the  state.  The  legislative,  executive  and 
judicial  bodies,  therefore,  are  not  with  us  the  repositories 
of  the  sovereign  power:  this  resides  essentially  in  the  peo- 
ple. Under  the  British  constitution,  on  the  other  hand, 
the  sovereignty  of  the  nation  is  supposed  to  reside  in  the 
legislature,  composed  of  King,  Lords  and  Commons:  su- 
preme power  and  legislative  power  being  there  converti- 
ble terms.  There  can  be  no  doubt,  however,  that  the  le- 
gislative power  may  reside  in  one  body,  whilst  the  jus 
sumrni  imperii,  or  sovereignty,  remains  with  the  people.* 
This,  in  effect,  is  the  case  even  in  England,  and  indeed  in 
every  other  nation.  It  may  not  be  recognized,  and  the 
right  may  remain  dormant  for  ages;  but  when  oppression 
of  the  people  becomes  open,  and  threatens  to  invade  im- 
portant rights  which  had  been  previously  respected,  the 
people  are  never  backward  in  maintaining,  at  any  sacrifice, 
the  important  truth,  that  they  are  supreme,  and  that  all 
others  are    but  their  functionaries,  whose  authority  ema- 

*  2  Ruth.  Inst.  1 15  &c.  1  Tuck.  Black.  Appen.  note  A. 

48 


378  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

nated  from  the  people,  and  may  be  resumed  whenever 
these  become  satisfied  of  the  thorough  unworthiness  of 
their  agents,  and  the  radical  injustice  or  impolicy  of  vest- 
ing in  them  the  powers  which  they  claim  to  exercise. 
The  history  of  every  nation  on  earth  proves  that  this 
doctrine  has  been  asserted  and  vindicated  by  the  people, 
whenever  a  strong  and  fitting  occasion  arose  to  demand  its 
enforcement.  It  is  a  melancholy  truth,  however,  that  whole 
nations,  as  well  as  a  host  of  misguided  authors,  have  at 
different  times,  and  in  various  nations,  maintained  with 
great  zeal  that  kings  are  accountable  for  the  exercise  of 
their  powers  to  no  one  but  God;  that  they  are  his  vice- 
gerents; and  that  to  oppose  them  is  to  raise  a  sacrilegious 
hand  against  the  Most  High.  This  doctrine  found  a  distin- 
guished champion  in  Sir  Robert  Filmer,  who  infers  the 
jure  divino  sovereignty  of  kings  from  the  power  given  to 
our  common  progenitor  Adam,  who,  as  he  contends,  was 
an  absolute  monarch!  He  is  further  of  opinion,  that  no 
man  is  born  free,  or  ever  can  be  free,  except  the  king;  and 
that  sovereignty  has  been  regularly  transmitted  from  Adam 
through  all  ihe  various  monarchs  who  have  succeeded,  in 
all  nations,  and  at  all  times!  The  celebrated  Locke  has 
devoted  a  considerable  portion  of  his  Treatise  of  Govern- 
ment to  the  refutation  of  this  unjust  and  truly  absurd  doc- 
trine. So  prevalent,  at  one  time,  was  this  notion  of  the 
divine  right  of  kings,  that  even  the  homilies  of  the  church 
strenuously  maintained  it;  and  Archb.  Tiliotson,  good  and 
learned  as  he  was,  contends  for  it  with  much  zeal,  in  his 
well  known  letter  to  Lord  Russell.  Others  of  equal  piety 
have  urged  passive  obedience,  no  less  as  a  christian  than  as 
a  political  virtue.  The  opinion  that  governmental  power 
flows  from  the  people  was  considered,  even  so  late  as  the 
year  168.3,  as  so  ab  le   a  doctrine,  that  it  was  pub- 

licity condemned  as  such  by  the  Oxford  decree. 


Lect.  IX.]  0P    THE    forms    OF    GOVERNMENT.  379 

It  is  pleasing  to  find,  however,  that  not  only  the  British 
nation,  but  those  of  nearly  all  Christendom,  have  of  iate 
manifested  more  respect  for  the  rights  of  the  people.  An 
infinitude  of  causes  is  gradually,  and,  in  some  countries, 
silently  operating,  to  enlighten  the  general  mind  on  the 
subject  of  the  relation  which  ought  to  subsist  between  the 
people  and  their  rulers;  and  though  the  doctrine  gains 
ground  but  slowly  in  many  countries,  there  are  strong  in- 
dications that  the  day  may  come  when  all  mankind  will 
acknowledge  awd  practise  it. 

This  happy  condition  of  things,  unfortunately,  has  not 
yet  been  more  than  feebly  manifested,  in  a  very  few  na- 
tions. But  the  friend  of  man  can  clearly  perceive  in  the 
actual  state  of  the  world  at  this  time,  more  combining 
causes,  more  auspicious  promises,  more  powerful  and  un- 
erring principles  in  operation,  to  produce  this  meliorated 
condition  of  man,  than  the  history  of  the  world  has  fur- 
nished at  any  previous  period.  But,  to  leave  this  digres- 
sion, let  us  resume  for  a  moment  longer  our  inquiry  into 
the  people's  right.  The  power  of  reforming  the  constitu- 
tion, of  suggesting  and  enforcing  changes  in  the  govern- 
ment and  laws,  suited  to  the  change  of  limes  and  circum- 
stances, must  belong  essentially  to  the  people,  who  are  to 
be  mainly  affected  by  them.  They,  and  they  only,  should 
decide  how  far  it  is  expedient  to  retain  old  principles,  or 
politick  to  adopt  new  ones.  What  an  absurdity  were  it  to 
imagine  that  a  state  whose  whole  aspect  was  altered,  whose 
pursuits  were  changed,  whose  transactions  with  other  states 
were  multiplied,  whose  occupations  had  become  infinitely 
various,  whose  knowledge  was  vastly  augmented,  and 
whose  manners  partook  of  the  general  melioration,  should 
nevertheless  be  compelled  to  abide  by  the  ancient  institu- 
tions, which  only  the  early  simplicity  of  manners  and  af- 
fairs had  rendered  proper,  and  which  were  no  longer  ade- 
quate to  the  exigencies  of  the  times,  or  the  enlarged  views 


380  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

of  the  people.  Indubitable  in  theory  as  is  the  necessity 
for  the  laws  to  keep  pace  with  the  growing  spirit  of  the  age, 
there  is  nothing  which  in  practice  has  been  so  little  re- 
garded. Change  is  stigmatized  as  innovation,  which  to 
many  is  only  another  name  for  trespass  on  hallowed  ground. 
The  lust  of  power,  and  an  unwillingness  that  the  deep  lines 
which  separate  the  people  from  their  rulers,  should  be  ren- 
dered less  visible,  added  to  a  dread  that  the  ancient  halo 
which  encompasses  those  in  high  places  should  be  dispelled, 
and  subjects  know  how  much  their  rulers  are  in  truth  in- 
debted to  them;  all  these,  I  say,  are  continually  repressing 
the  spirit  of  improvement,  and  keeping  the  people  either 
ignorant  of  their  rights,  or  unable  to  assert  them. 

But  this  right,  however  manifest,  or  wherever  it  may 
reside,  is  one  which  should  be  exercised  in  all  nations,  and 
under  all  circumstances,  with  the  prefoundest  discretion, 
and  the  best  of  tempers.  It  is  a  power  which  the  people, 
(or  whatever  other  organ  may  possess  it,)  should  resort  to 
with  a  becoming  veneration  for  existing  laws,  and  the  ful- 
lest conviction  of  the  necessity  of  change.  A  wholesome 
jealousy  of  innovation  is  essential,  lest  we  rush  into  vain  or 
impracticable  experiments,  in  the  light  hope  of  obtaining 
something  better,  and  also  lest,  under  the  guise  of  salutary 
reform,  ambition  or  anarchy  should  lurk,  and  the  worst 
passions  of  our  nature  be  eventually  set  loose  upon  society. 
That  great  caution,  in  fine,  is  necessary  in  this  respect, 
further  appears  from  the  fact,  that  one  of  the  strongest  ar- 
guments opposed  by  tyranny  against  all  innovations,  has 
been  drawn  from  the  rashness  and  ignorance  which  have  so 
often  accompanied  attempts  at  reform. 

(3.)  Of  the  various       We  are  now  to  examine  into  the  dif- 

Forms     of    govern-  ferent  Forms  of  government  which  vari- 

mcnt,   and  Jirst,  how 

Form     of     govern-  ous  nations  have  selected:  also,  into  the 

ment  diiiers  from  a  opinions  of  some  eminent  legislators  and 
Constitution    Second- 
ly, of  the  influence  philosophers  of  antiquity,  and  of  modern 


Leet.  IX]  OF    THE    FORMS    OF    GOVERNMENT.  381 

of  government  on  in-  times,  as  to  the  best  form  of  government; 

dividual  and  national  ,     ,,     •         •  ^  ■  ■  •  *. 

chara-ter.       Thirdly,   and    tlieir    VieWS    0n    tblS    SU0Ject>  as    set 

variou<  divisions  of  forth    in    their   political    romances,    and 

the  forms  of  govern-      ,, 

...      ,  other  writings, 
ment,  a>  d   herein  ot  ° 

the  divisions  of  Pla-       A  Form  of  government  differs  from  a 

to,  Socrates,   \iisto-  Constitution.      Ail  nations  must  have  the 

tie.  Machiavel,  Polv-  . 

bins  Cicero  a;-d  oth-  former,    but    need    not  have    the    latter, 

ers.  and  of  the  otni-  unies^    indeed,  the  very   form    be    itself 
nions  of  various  an- 
cient and  modern  le-   regarded    as   a    fundamental    or   constitu- 

gislatorsaud  phiioso-  tional  doctrine,  which  can  scarcely  be  the 
phers as tu actual  and  .„  .  .,     ,.,, 

idea!    forms    of    go-  case>  and>  lf  lt  were'  W0Llld  StlU  n0t  COme 

vernment.  up  to  the  idea  of  a  constitution,  as   it  is 

understood  by  people  generally,  and  especially  by  political 
philosophers.  A  form  of  government,  in  the  language  of 
Vattel,  'is  understood  to  refer  to  the  distribution  of  the 
powers  of  legislation  and  administration,  and  to  denote 
whether  those  powers  are  accumulated  in  one  person,  or 
variously  distributed  among  several  individuals  or  bodies. 
The  term  constitution  goes  further,  and  includes  also  the 
particular  regulations  which  prevail  respecting  the  manner 
in  which  these  powers  are  to  be  exercised.'  Hence,  dif- 
ferent countries  may  have  the  same  form  of  government, 
but  different  constitutions;  but  if  they  have  the  same  con- 
stitution, they  necessarily  have  the  same  form  of  govern- 
ment. 

The  word  'constitution'  is  also  frequently  used  to  denote 
either  the  written  instrument  which  defines  the  relation  be- 
tween the  governed  and  their  rulers,  and  the  rights  and  du- 
ties of  each,  as,  for  example,  the  constitution  of  the  United 
States,  those  of  the  several  states,  &c:  or  that  body  of 
usages  existing  from  time  immemorial  in  the  memories  of 
men,  or  in  scattered  documents,  as  is  the  case  with  the  Bri- 
tish constitution,  and  indeed  with  what  are  called  the  fun- 
damental laws  of  every  nation  whose  government  is  not 
absolutely  despotick. 


382  OP    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

Forms  of  government,  thus  understood,  though  ex- 
tremely various  in  consequence  of  the  modifications  which 
they  receive  from  the  admixture  of  the  different  simple 
forms,  are  yet  susceptible  of  classification,  and  have  been 
classified  by  writers  and  philosophers  from  the  earliest  an- 
tiquity, whilst  the  constitutions  establishing  them  must 
necessarily  be  incapable  of  such  a  classification. 

We  are  also  to  distinguish  the  form  and  constitution 
from  what  Montesquieu  calls  the  Principle  of  a  govern- 
ment. The  former  are  those  by  which  the  government  is 
constituted;  the  latter  is  that  by  which  it  is  made  to  act. 
'One  is  its  particular  structure;  the  other  the  passions 
which  set  it  in  motion.'* 

Some  affectation  has  been  manifested  by  writers  on  thi3 
subject  of  the  'principles  of  government,'  both  before  and 
subsequent  to  Montesquieu,  who,  though  the  first  to  speak 
with  philosophical  clearness  on  this  matter,  is  by  no  means 
the  first  or  only  one  who  understood  it.  These  principles 
of  government,  whether  they  be  those  of  authority  or  of 
power,  have  been  anxiously  sought  after  by  the  political 
philosophers  of  all  ages  of  the  world.  What  are  called  the 
Principles  of  Authority,  are  said  to  be  the  cardinal  virtues, 
prudence,  justice,  temperance  and  fortitude;  and  the  go- 
vernmental Principles  of  Power  are  said  to  be  certain  goods 
of  fortune,  as  knowledge,  riches,  ancestry,  policy,  reputa- 
tion &c.  &c.  These  principles  have  been  variously  ap- 
plied, both  in  practice  and  theory;  and  legislators  and  phi- 
losophers have  built  on  them  their  real  or  fictitious  systems 
of  government. 

Ancient  and  modern  times  furnish  several  examples  of 
distinguished  lawgivers  and  philosophers  who  have  dis- 
played, in  practice  or  theory,  what  they  esteemed  the  most 
perfect  models  of  human  government.      It  will  be  our  ob- 

*  Montes.  Sp.  Laws,  Book  3,  chap.  I. 


Lcct.  IX.]  OF    THE   FORMS    OF    GOVERNMENT.  383 

ject,  in  a  summary  way,  to  inform  the  student  who  most  of 
these  legislators  and  philosophers  were,  and  what  were 
their  principal  doctrines  on  the  subject  of  political  philoso- 
phy; and  to  give  a  brief  analysis  of  some  of  their  works, 
more  particularly  those  on  the  ideal  polities,  or  the  sup- 
posed best  forms  of  human  government. 

The  Legislators  of  antiquity,  of  most  note,  were  Moses, 
Minos,  Zaleucus,  Charondas,  Lycurgus,  Solon,  Romulus, 
Numa,  Draco,  Pittacus,  Zoroaster  and  Confucius,  some  of 
whose  laws  and  institutions  have  been  preserved,  and  ex- 
cite both  esteem  and  pity,  since  they  generally  display  a 
singular  combination  of  philosophical  acumen,  and  surpris- 
ing ignorance  and  superstition. 

The  Philosophers  of  most  note  among  the  ancients,  for 
the  cultivation  of  political  science,  were  Plato,  Aristotle, 
Cicero,  Socrates  and  Polybius,  the  writings  of  the  three 
first  of  whom  have  come  to  our  day  in  a  nearly  perfect 
state. 

The  legislators  of  modern  times  who  have  been  distin- 
guished, are  the  Emperor  Justinian,  Timour  the  Tartar, 
Alfred  the  Great,  Edward  the  Confessor,  Edward  I.  of 
England,  Peter  the  Great,  of  Russia,  Frederick  the  Great, 
of  Prussia,  and  the  Emperor  Napoleon.  All  these  had 
laws  and  a  scheme  of  policy  which  have  illustrated  their 
names  in  a  greater  or  less  degree;  and  most  of  them  have 
shed  useful  light  on  the  science  and  art  of  government. 

The  philosophers  of  modern  days  whose  views  of  phi- 
losophical legislation  are  most  worthy  of  remark,  are  Ma- 
ehiavel,  Sidney,  More,  Bacon,  Locke,  Milton,  Harrington, 
Montesquieu  and  Hume;  to  whom  we  may  with  great  pro- 
priety add  our  own  distinguished  countrymen,  the  authors 
of  the  Federalist,  and  John  Adams. 

Some  of  these  philosophers,  ancient  and  modern,  have 
chosen  to  convey  their  opinions  on  the  science  of  politics 
by  presenting  a  beau  ideal,  or  imaginary  perfect  govern- 


1 


384  OP    THE    FORMS    OP    GOVERNMENT.  [Lect.  IX. 

merit.  Such  is  the  'Republic'  of  Plato,  the  'Prince'  of 
Machiavel,  the  'Utopia'  of  Sir  Thomas  More,  and  the 
'Oceana'  of  Harrington.  Besides  these,  we  may  mention 
the  'Cvropaedia'  of  Xenophon,  the  'Travels  of  Cyrus'  by 
the  Chevalier  Ramsay,  the  'Idea  of  a  Patriot  King'  by 
Boliiigbroke,  'The  Adventures  of  Gaudentio  di  Lucca,' 
and  perhaps  the  'Travels  of  Gulliver.' 

We  propose  to  bestow  some  consideration  on  the  doc- 
trines and  lives  of  several  of  these  ancient  and  modern 
legislators  and  philosophers;   and  first, 

Of  Plato's  Views  of  Government.  As  the  works 
of  Plato  are  voluminous,  and  in  this  country  are  seldom  to 
be  found  except  in  the  hands  of  veteran  students,  it  may 
be  well  to  explain  of  what  they  consist,  before  we  proceed 
to  speak  of  his  opinions.  An  enumeration  of  all  the 
works  of  this  eminent  philosopher,  with  their  names  and 
extent,  may  invite  the  student,  through  curiosity  or  a 
more  worthy  motive,  to  a  further  acquaintance  with  them 
than  what  may  be  gleaned  from  the  sketch   here  given. 

The  whole  of  Plato's  works,  then,  are  contained  in 
fifty-five  Dialogues  and  twelve  Epistles.  Hermodorus 
however,  in  his  collection,  makes  only  thirty-five  dialogues, 
but  gives  thirteen  epistles.  The  reason  of  this  variance 
may  be,  that  there  is  some  doubt  whether  some  of  the  dia- 
logues be  not  the  production  of  one  or  more  of  his  distin- 
guished pupils,  as  is  certainly  the  fact  with  the  dialogue 
called  'Epinomis.'  Each  of  the  dialogues  is  designated  by 
a  short  and  pithy  name,  such  as  'De  Poiitieo,'  'De  Repub- 
lica,'  'De  Legibus.'  His  works  may  be  divided  into  four 
classes,  viz.  Physical,  Logical,  Ethical  and  Political.  The 
treatise  'De  Republica'  is  not  properly  a  dialogue,  as  the 
whole  is  recited  by  Socrates;  but  he  details  the  opinions 
of  the  other  supposed  interlocutors.  As  the  writings  of 
Plato  may  now  be  studied  by  those  who  are  not  deeply 
versed  in  the  Greek  and  Latin  languages,  they  having  re- 


Lect.  IX]  OF    THE    FORMS    OF    GOVERNMENT.  385 

cently  assumed  an  English  garb,  any  one  may  now  speak 
of  them  with  a  familiarity  which  a  few  only  could  former- 
ly have  possessed.  And,  indeed,  were  scholars  in  those 
languages  more  frequent,  and  even  much  addicted  to  their 
perusal,  still  they  would  not  be  justified  in  disregarding 
the  laborious  researches  of  such  translators  as  Taylor  and 
Sydenham,  who  devoted  much  time  and  deep  investiga- 
tion, to  attain  a  thorough  knowledge  of  their  author. 
Nine  of  the  dialogues  were  translated  by  Sydenham,  and 
the  remainder,  together  with  the  epistles,  by  Taylor;  and 
the  whole,  with  learned  annotations,  were  published  in 
1803,  in  five  quarto  volumes.  The  works  of  Plato  being 
often  referred  to  on  subjects  of  natural  and  political  juris- 
prudence and  ethicks,  we  shall  present  to  the  student 
the  names  of  all  of  them,  together  with  the  volume  and 
page  in  which  they  may  be  found  in  the  translations  of 
Taylor  and  Sydenham.  We  would  previously  observe 
however,  if  it  be  not  sinning  against  all  authority,  that 
after  a  pretty  careful  examination  of  his  works,  mainly,  we 
confess,  through  the  aid  furnished  us  by  Taylor  and  others, 
we  are  strongly  inclined  to  the  opinion  that  the  wisdom, 
learning  and  acumen  of  the  divine  Plato  have  been  greatly 
overrated.  It  appears  to  us  that  there  is  much  of  wordy 
jargon,  inexplicable  subtlety,  and  occult  and  useless  learn- 
ing; often  combined,  indeed,  with  bold  and  striking 
thoughts,  close  and  deep  reasoning,  and  numerous  apo- 
thegms and  aphorisms  of  truth  and  wisdom.  The  prevail- 
ing character,  however,  of  his  works  is  mysticism,  sym- 
bolical and  incomprehensible  physicks,  logical  cant,  acroa- 
matick  speculations,  and  still  more  acroamatick  words  and 
terms,  perhaps  at  no  time  fully  comprehended  by  his  disci- 
ples, or  by  his  readers  in  after  ages,  and  possibly  as  little 
understood  by  himself.  His  imagination  was  certainly 
brilliant,  and  his  eloquence  of  the  highest  order;  but  that 
his  wisdom  was  not  proof  against  the  affectation  and  pe- 
49 


3S6  OF    THE    FORMS    OF    GOVERNMENT.  [Lcct.  IX. 

dantry  of  his  age,  is  abundantly  manifest  throughout  his 
writings,  in  the  various  fantastical  notions  and  sublime 
nothings  which  a  philosopher  of  the  present  age  would 
utterly  repudiate.  On  the  whole,  therefore,  we  cannot 
doubt  that  the  age  of  Platonism  is  forever  past;  and 
that  the  remark  of  Dionysius  on  another  occasion  may  be 
correctly  applied  to  much  of  the  philosophy  of  this  greatly 
distinguished  man,  viz  that  many  of  the  notions  are  'Verba 
otiosorum  senum  ad  imperitos  juvenes.'  And  though  the 
wise  and  learned  and  aged  of  many  nations  and  times  have 
sought  instruction  in  the  pages  of  the  divine  Plato,  much 
of  this  must  be  ascribed  to  circumstances  which  have  per- 
haps entirely  passed  away,  and  can  never  recur.  These 
we  need  not  enumerate,  as  they  will  readily  suggest  them- 
selves to  the  mind  of  a  student  tolerably  acquainted  with 
the  progress  of  human  knowledge,  from  the  days  of  Plato 
to  the  dark  ages,  and  from  the  revival  of  literature  to  the 
eighteenth  century,  when  the  present  philosophy  of  mat- 
ter and  mind  became  fully  established.  But,  parting  with 
what  may  be  considered  too  digressive,  we  shall  now  pre- 
sent the  promised  list  of  Plato's  writings. 

List   of    Plato's    ivritings,  as  contained    in    Taylor's 
edition,  in  Jive  volumes,  quarto,  translated  into  En- 
glish by  him  and  Sydenham,  with  annotations  <$-c. 
DIALOGUES. 

VOLUME    FIRST. 

No.  1.  'The  First  Alcibiades.'         page  9  to  9S 

2  to  10.    'The  Republic' — Ten  Books 

or  Dialogues.  -         -         99  to  47S 

VOLUME     SECOND. 

11  to  23.    'The     Laws'— Twelve     Dia- 
logues. -         -         -  1  to  384 
24.             'Epinomis,  or  the  Philosopher.'  3S5  to  414 
(J^f°  This  dialogue  is  supposed   by  Diogenes  Laertius  to 
be  the  production  of  one  of  his  disciples. 


Lect.  IX.]             OF    THE    FORMS    OF    GOVERNMENT.  3S7 

No.  25.    'The  Timaeus.'         -         -  -         414  to  575 

•26.    'The  Critias,  or  Atlanticus.'  -     575  to  593 

VOLUME    THIRD. 

27.  'The  Parminedes.'             -  -              1  to  201 

28.  'The  Sophista.'              -         -  -     202  to  283 

29.  'The  Phsedrus.'          -         -  -         283  to  373 

30.  'The  Greater  Hippias.'          -  -     373  to  429 

31.  'The  Banquet.'  429  to  531 

VOLUME    FOURTH. 

32.  'The  Theaeteus.'         -         -  -           1  to    99 

33.  'The  Politicus.'       -         -  -            100  to  175 

34.  'The  Minos.'                 -         -  -      175  to  193 

35.  'The  Apology  of  Socrates.'  -          193  to  229 

36.  'The  Crito.'          -  -     229  to  245 

37.  'ThePhaedo.'             -         -  -         245  to  343 

38.  'The  Gorgias.'     -  343  to  461 

39.  'The  Philebus.'         -         -  -         461  to  571 

40.  'The  Second  Alcibiades.'       -  -     571  to  575 

VOLUME     FIFTH. 

41.  'Euthyphra.'             -         -  -               1  to    27 

42.  'TheMeno.'        ...  -       28  to  101 

43.  'Protagoras.'              -         -  -          101  to  157 

44.  'The  Theages.'              -         -  -     157  to  179 

45.  'The  Laches.'            -         -  -          179  to  211 

46.  'The  Lyris.'          -  211  to  239 

47.  'TheCharmides.'              -  -           239  to  269 

48.  'The  Lesser  Hippias.'             -  -     269  to  309 

49.  'The  Euthydemus.'            -  -         309  to  355 

50.  'The  Hipparchus.'       -  -     355  to  371 

51.  'The  Rivals.'             -         -  -         371  to  40S 

52.  'Menexenus.'      -  408  to  431 

53.  'Clitopho.'        ...  -          431  to  439 

54.  'The  Io.' 439  to  489 

55.  'The  Cratylus.'         -         -  -         489  to  575 


3S8  or    THE    FORMS    OP    GOVERNMENT.  [Lect.  IX. 

(0°  The  EPISTLES  are  twelve  in  number,  and  are  as 
follows: 

No.  1,  2,  3.  Epistles  to  Dionysius.  [These  are  by  some 
supposed  to  have  been  written  by  Dion,  one  of  his  disci- 
ples.] 

No.  4.  Plato  to  Dion:  5.  Dion:  to  Perdiccas.  6.  Plato 
to  Hermias  and  others.  7.  Plato  to  the  Kindred  of  Dion: 
8.  Plato  to  the  Familiars  of  Dion:  9.  Plato  to  Archytas. 
10.  Plato  to  Aristodorus.  11.  Plato  to  Laodamus.  12. 
Plato  to  Archytas. 

Having  spoken,  in  a  general  way,  of  the  works  of  Plato, 
let  us  inquire  into  some  of  his  opinions  and  doctrines, 
more  particularly  on  the  subject  of  government. 

In  the  writings  of  this  'Prince  of  ancient  philosophers' 
we  find  two  distinct  classifications  of  the  forms  of  govern- 
ment. One  is  contained  in  his  dialogue  entitled  'The 
Politicus;'  the  other  in  the  dialogues  called  'The  Repub- 
lic,' but  chiefly  in  the  fourth,  eighth  and  ninth  dialogues  of 
that  work.  His  opinions  generally  on  the  subject  of  go- 
vernment are  also  to  be  found  in  'The  Timacus'  and  'The 
Minos;'  in  his  twelve  dialogues  called  'The  Laws;'  and 
lastly,  in  his  epistles  to  Dionysius. 

In  our  examination  of  Plato's  views  of  government,  wc 
shall  confine  ourselves  mainly  to  his  'Politicus,'  and  'Re- 
public;' and  first,  of  his  classification  of  the  forms  of  go- 
vernment as  it  is  displayed  in  the  former  of  these  works. 
In  the  Politicus  his  cardinal  divisions  are  three,  viz.  as  the 
government  is  reposed  in  one,  in  a  few,  or  in  many.  His 
subordinate  divisions  are  six,  viz.  1,  a  government  by  con- 
sent; 2,  by  force;  3,  by  the  rich;  4,  by*the  poor;  5,  ac- 
cording to  established  laws;  and  6,  without  laws.  The  car- 
dinal distinctions  he  thus  applies.  The  government  of  one 
he  denominates  monarchy,  which  may  be  of  two  kinds, 
viz.  that  of  a  king,  and  that  of  a  tyrant.  The  government 
of  a  few  he  calls  aristocracy,  when  established  and  rcgu- 


# 


Lect.  IX.]  .  OF    THE    FORMS    OF    GOVERNMENT.  389 

lated  by  laws;  and  oligarchy,  when  it  is  corrupt,  and  sub- 
ject to  no  certain  laws.  The  government  of  many  he  de- 
signates by  the  general  name  of  democracy,  though  he  says 
that  this  is  also  of  two  kinds.  Hence  monarchy,  aristocracy 
and  democracy  are  with  him  generic  words;  but  when  they 
are  corrupt,  and  are  conducted  with  force,  or  without  laws 
and  true  political  knowledge,  he  distinguishes  the  first  by 
the  name  of  tyranny,  the  second  by  that  of  oligarchy,  and 
to  the  third  he  has  assigned  no  special  name,  but  retains  the 
word  democracy  as  applicable  indiscriminately  to  either  the 
pure  or  the  corrupt  government  of  the  people.  A  corrupt 
democracy  has  since  taken  the  name  of  ochlocracy  or  anarchy. 

It  appears,  then,  that  Plato  in  this  work  enumerates  six 
forms  of  government,  and  has  given  five  special  names,  ac- 
cording as  the  three  elementary  and  pure  forms  may  as- 
sume a  new  character  by  abandoning  the  true  principle  on 
which  they  essentially  rest. 

We  find  in  the  works  of  Plato  some,  little  confusion  as 
to  the  exact  distinction  between  a  king  and  a  tyrant.  In 
'Epinomis'  he  appears  to  regard  these  words  as  synony- 
mous, and  as  meaning  nothing  more  than  a  single  ruler,  go- 
verning with  wisdom  and  justice.  But  in  his  third  epistle 
to  Dionysius  he  clearly  alludes  to  the  well  known  differ- 
ence, of  the  one  being  regulated  by  law,  the  other  by  ca- 
price. So,  again,  in  'Politicus'  he  makes  the  distinction  to 
consist  in  the  Gne's  governing  by  the  consent,  the  other 
without  the  consent  of  the  people;  but  in  the  same  dialogue 
he  abandons  this  distinction,  and  makes  kingly  government 
dependent  altogether  on  the  wisdom  and  knowledge  with 
which  an  individual  governs,  without  reference  to  the  go- 
vernment being  one  of  law  or  not,  of  consent  or  not. 
There  is  likewise  another  distinction  between  tyranny  and 
regal  government,  to  be  found  in  Plato.  Tu^awos  is  made 
to  signify  one  who  has  himself  acquired  the  sovereignty  of 
a  state  formerly  free;  the  governing  with  prudence  or  oth- 


390  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

erwise,  making  no  difference,  as  it  is  the  manner  of  ac- 
quiring political  rule  that  is  alone  necessary  to  make  one 
a  tyrant.  In  this  view  of  the  word  it  differs  in  no  respect 
from  our  word  'usurper,'  except  that  usurpation  is  a  word  of 
still  more  extensive  import,  and  may  be  predicated  of  any 
unjust  acquisition  of  sovereignty,  be  the  state  previously 
enslaved  or  free. 

In  the  work  under  consideration,  Plato  lays  down,  in 
substance,  the  following  positions. 

1.  That  the  most  perfect  of  all  governments  is  that  of  a 
king,  because,  ex  vi  termini,  king  means  one  eminent  for 
probity  and  wisdom. 

2.  That  if  any  individual  in  a  nation  far  exceeds  all  oth- 
ers in  prudence  and  justice,  he  is  born  a  king,  though  he 
should  from  circumstances  for  ever  remain  a  private  man. 

3.  That  the  government  next  in  the  scale  of  excellence, 
is  an  aristocracy,  which  he  says  differs  in  no  respect  from 
a  regal  government,  except  that  the  former  is  by  a  few,  the 
latter  by  one. 

4.  That  a  democracy,  or  popular  government,  is  only 
praiseworthy  so  long  as  it  continues  to  be  regulated  by  laws; 
but  that  its  strong  tendency  is  to  corruption,  and,  conse- 
quently, that  a  good  government  is  only  to  be  expected 
when  sovereign  power  is  exercised  by  one  or  a  few. 

5.  That  oligarchy,  which  is  a  corrupt  aristocracy,  is 
much  to  be  reprobated. 

6.  That  tyranny  is  the  worst  of  every  species  of  domi- 
nion, as  it  is  the  very  opposite  of  a  regal  government,  and 
puts  in  requisition  every  bad  quality  of  the  soul,  since  a 
tyrant  is  guided  neither  by  intelligence  nor  law,  but  mainly 
by  caprice.  He  concludes,  on  the  whole,  that  although 
monarchy  be  the  best  of  all  known  or  practised  govern- 
ments, still  it  falls  far  short  of  a  seventh  species,  which  is 
as  much  distinguished  from  a  regal  government  as  to  ex- 
cellence, as  God  is  from  the  human  race,  and  that  this  ad- 


Lect.  IX.]  OP    THE    FORMS    OP    GOVERNMENT.  391 

inirable  form  admits  of  no  divisions.  This  ideal  polity  he 
gives  no  account  of  in  'Politieus,'  but  reserves  the  consi- 
deration of  it  for  his  celebrated  work  entitled  'The  Re- 
public,' which  we  shall  now  proceed  briefly  to  examine. 

The  treatise  'Dc  Republica'  is,  as  has  been  intimated,  a 
kind  of  political  romance,  in  which  Plato  makes  Socrates 
recite  certain  dialogues  supposed  to  have  occurred  between 
that  great  philosopher  and  five  others,  in  the  house  of  Ce- 
phalus,  at  the  Pirseum.  The  object  of  these  dialogues  is  to 
present  an  imaginary  government  which  shall  combine 
every  excellence,  and  avoid  every  imperfection;  one  which 
is  based  on  all  the  virtues  of  our  species,  and  so  constituted  as 
to  shun  every  practical  evil  which  might  result  from  the 
vices  of  man.  Plato  considers  that  all  other  governments  are 
so  many  deviating  forms,  or  deflexions  from  that  perfect 
model  which  is  given  in  the  'Republic'  In  the  ninth  dia- 
logue of  this  work,  he  states,  in  substance,  that  no  such 
perfect  government  hath  ever  been  practised;  that  it  is  a 
mere  ens  rationis,  but  still  that  its  excellences  may,  and 
ought  to  be  imitated  by  all  governments,  as  far  as  the  vices 
of  man  do  not  raise  a  perpetual  barrier.  Those,  conse- 
quently, who  have  censured  Plato  for  making  a  mere  beau 
ideal,  a  fiction  of  the  brain  only,  the  foundation  of  a  poli- 
tical system,  appear  not  to  have  duly  appreciated  his  mo- 
tive. The  state  of  nature,  for  example,  though  it  may  ne- 
ver have  existed,  may  still  be  used  by  the  philosopher  as  a 
means  of  conveying  much  useful  instruction,  and  be  made 
the  foundation  of  as  legitimate  and  salutary  inferences  as 
if  the  state  had  actually  existed,  and  men  had  departed 
from  it  by  primary  associations,  and,  in  time,  by  the  forma- 
tion of  civil  societies.  So,  again,  the  moralist  may  deline- 
ate a  perfect  man,  and  hold  him  up  as  a  model  for  imita- 
tion, and  yet  there  is  not  the  least  danger  of  confounding 
the  real,  with  this  imaginary  character  of  man.  The  ob- 
jection,   then,  to  which   we  allude,  appears  to  be  wholly 


392  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

groundless.  Plato  never  offered  this  system  to  the  world 
as  a  practical  scheme  of  polity,  but  merely  intended  it  as  a 
lesson  to  those  in  power,  and  an  exemplar  for  feeble  imita- 
tion. In  that  beautiful  little  Italian  work  by  Count  Verri, 
in  the  dialogue  which  occurs  between  the  ghosts  of  Cato  the 
Censor  and  of  Cicero,  on  the  question  'whether  learning 
corrupts  manners,'  it  was  objected  to  Cicero  that  his  favou- 
rite Plato  had  banished  the  divine  Homer  from  his  imagina- 
ry republic.  Cicero  is  made  to  reply,  that  'Plato  himself 
would  not  have  been  willing  to  live  in  it;  for  if  Plato  had 
not  drunk  at  the  pure  fountain  of  the  majestic  eloquence  of 
Homer,  he  would  never  have  possessed  that  magnificence 
of  style,  that  dignified  simplicity,  and  that  abundance  of 
charms,  by  which  his  occasional  inextricable  opinions  cap- 
tivate the  mind  with  flattering  illusion.  Plato  thought  fit  to 
contrive  the  plan  of  a  perfect  government,  since  the  world 
afforded  no  example  of  such  a  one  for  imitation;  and  it  is 
fortunate  that  no  nation  has  attempted  to  reduce  this  refined 
theory  to  practice,  since  it  would  have  exposed  the  reputa- 
tion of  that  illustrious  philosopher  to  the  cavils  of  the  ig- 
norant.'* 

This  imaginary  system,  which  Plato  calls,  per  excelhn- 
tiam,  the  'right  government,'  is  one  of  five  forms  set  forth 
by  him  in  these  dialogues.  The  classification  in  the  Re- 
public is  considered  as  exclusively  Plato's;  whereas  that 
which  is  given  in  'Politicus'  is  supposed  to  be,  in  substance, 
the  same  with  that  taught  by  his  great  master  Socrates. 

The  five  forms  enumerated  and  described  in  the  treatise 
under  consideration,  areTimarchy,  Oligarchy,  Democracy, 
Tyranny,  and  the  Right  Government,  that  is,  his  own 
ideal  system,  which  it  is  the  main  object  of  the  treatise 
'De  Republica'  to  set  forth. 

The  entire  classification  of  governments  described  in  this 
work,  rests  on  a  fanciful  and  ingenious  comparison,  which 

*  Vide  Roman  Nights,  255. 


Lect.  IX.]  OP    THE    FORMS    OF    GOVERNMENT.  6U6 

is  preserved  throughout,  between  the  four  first  mentioned 
governments,  and  as  many  imaginary  individual  characters. 
He  contends  that  these  governments,  which  are  departures 
from  his  own  perfect  form,  take  their  rise  from  four  several 
evil  dispositions  of  the  human  soul,  viz.  Ambition,  Avarice, 
Impatience  of  Restraint,  and  Prodigality  without  Virtue. 
Hence  these  four  governments  are  characterized  each  by 
its  particular  vice,  which  in  time  produces  its  certain  dis- 
solution. Plato  first  describes  the  ideal  perfect  man,  whom 
he  endues  with  a  full  measure  of  the  cardinal  virtues,  jus- 
tice, temperance,  prudence  and  fortitude,  and  holds  that 
his  right  government  must  entirely  correspond  with  this 
imaginary  individual.  The  other  forms,  he  says,  are  more 
or  less  corruptions  of  the  perfect  one,  as  they  disregard  the 
practice  of  the  cardinal  virtues;  and  that  what  is  just  and 
prudent  and  temperate  and  courageous  in  the  soul  of  a  per- 
fect man,  will  be  the  rule  of  action  in  the  right  govern- 
ment. He  considers  that  a  soul  may  be  actuated  mainly 
by  three  principles,  viz.  Reason,  by  which  it  consults  on 
the  means  of  self-preservation;  Anger,  by  which  it  aven- 
ges wrongs;  and  Prudence,  by  which  it  is  led  to  supply 
the  demands  of  our  nature.  So  a  well  regulated  polity 
will  have  three  great  objects  in  view,  viz.  to  reason,  to 
war,  and  to  provide.  Hence,  says  he,  the  three  essential 
spirits,  the  Guardian,  the  Auxiliary,  and  the  Mercenary. 
There  being  as  many  kinds  of  republics  as  there  are  souls, 
these  giving  rise  by  their  prevailing  temper  to  their  re- 
spective forms  of  government,  there  will  be  an  Ambitious 
Republic,  an  Avaricious  Republic,  a  Licentious  Repub- 
lic, and  a  Prodigal  or  vicious  Republic.  Plato  then  pro- 
ceeds to  describe  in  order,  how  these  four  governments  are 
generated,  the  characteristics  of  each,  and  the  man  or  in- 
dividual who  corresponds  to  the  temper  of  the  particular 
government.      After  these  four  comparatively  corrupt  go- 


50 


394  OP    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

vernments  are  thus  delineated,    he  proceeds,  in   the  last 
place,  to  describe  the  Perfect  Form. 

We  shall  now  make  a  brief  examination  of  Plato's  views 
of  the  four  imperfect  governments,  and 

1.  Of  Timarchy.  To  this  government  our  philosopher 
has  given  several  other  names,  as  the  Cretan  and  Spartan, 
because  he  regards  the  constitutions  of  Crete  and  of  Lace- 
demon  as  very  similar  to  this:  He  likewise  calls  it  an  am- 
bitious republick,  or  timocracy,  because  in  such  a  govern- 
ment the  rule  is  in  the  hands  of  the  wealthy  and  ambitious. 
Their  rulers,  he  says,  will  be  honoured;  the  military  will 
be  a  distinct  body,  engaged  only  in  martial  and  gymnastic 
exercises,  having  nothing  to  do  with  agriculture  and  the 
arts.  In  such  a  government  wisdom  and  knowledge  are 
but  little  respected,  when  compared  with  strength,  and  an 
acquaintance  with  the  manoeuvres  and  stratagems  of  war. 
The  military  become  fond  of  wealth,  and  ambitious  spirits 
rise  into  influence.  This  species  of  government  may  be 
compared,  he  thinks,  to  an  ambitious  man;  one  arrogant 
and  rough  to  his  inferiors,  mild  to  his  equals,  and  even 
submissive  to  those  above  him. 

2.  Of  Oligarchy.  In  this  government  the  ruling 
principle,  according  to  Plato,  is  avarice,  or  the  acquisition 
of  wealth,  as  ambition  is  the  soul  of  timarchy.  The  poor 
have  no  share  in  the  government.  Power  is  monopolized 
by  the  few  who  are  rich,  and  these  are  ever  active  to  keep 
themselves  in  power,  as  the  only  means  of  preserving  their 
wealth.  Hence  two  factions  arise,  viz.  the  rich  and  the 
poor,  the  latter  of  whom  are  by  far  the  most  numerous. 
Wars  do  not  often  occur,  because  those  in  power  are  afraid 
to  trust  arms  with  the  multitude;  and  they  are  also  too 
parsimonious  to  advance  the  means  which  are  requisite  to 
sustain  wars.  The  people  are  kept  in  strict  subjection, 
not  only   by  force,  but  by  various  contrivances.     Under 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  395 

such  a  government  the  same  individual  of1  en  follows  the 
profession  of  agriculture,  of  the  arts,  and  of  war. 

The  man  who  corresponds  to  the  spirit  of  this  govern- 
ment, is  then  described,  and  he  is  said  to  be  generally  one 
who  has  been  ambitious,  and  is  now  mainly  avaricious. 
The  change  from  a  timocratical  to  an  oligarchical  man  is  . 
next  described;  and  lastly,  the  mode  in  which  an  ambitious 
republic  is  apt  to  become  an  oligarchy. 

The  student  will  here  perceive  that  oligarchy  has  a  sig- 
nification given  it  somewhat  different  from  what  is  usual, 
as  it  is  generally  contrasted  with  aristocracy.  A  govern- 
ment by  a  few  according  to  lawrs,  which  is  an  aristocracy, 
is  usually  opposed  to  a  government  by  a  like  few,  but  ad- 
ministered corruptly,  and  without  laws.  Plato,  however, 
does  not  mention  aristocracy  in  the  'Republic,'  nor  does 
he  consider  oligarchy  in  any  other  light  than  as  a  govern- 
ment chiefly  actuated  by  the  principle  of  conferring  power 
on  the  wealthy  alone. 

3.  Of  Democracy.  This  form  is  where  the  multitude 
govern;  and  the  spirit  which  actuates  it  is  said  to  be  a  rest- 
lessness under  restraint.  Plato  regards  it  as  decidedly 
more  corrupt  in  its  nature  or  tendencies  than  the  other 
two.  In  a  democracy,  which  is  the  reverse  of  an  oligar- 
chy, the  poor  prevail  over  the  rich.  Education  is  but  lit- 
tle regarded.  The  rich  are  envied  or  despised.  Two 
violent  factions  arise,  viz.  the  oligarchic  and  the  democra- 
tic. Actions  and  speech  are  but  little  restrained.  Offices 
are  open  to  all  without  any  qualification,  and  are  given  to 
those  who  can  intrigue  the  best.  Talents  and  genius  of 
every  description  present  themselves.  Wisdom  and  virtue 
are  not  unfrequent;  but  there  is  no  fixed  character,  no  es- 
tablished rule  of  conduct,  fickleness  being  a  striking  charac- 
teristic. He  then  proceeds  to  describe  the  democratic 
man,  and  how  democracy  is  apt  to  arise  from  the  corrup- 
tion of  an  oligarchy. 


396  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

4.   Of  Tyranny.      The  last  of  the  four  imperfect  forms 
of  government  described  in  the    'Republic,'  is  Tyranny, 
which  he  says  is  apt  to  be  produced  by  the  corruption  of 
a  democracy.     He  thinks  the  people,  who  are  always  vio- 
lent in  their  prejudices,  will  exalt  some  favourite,  who  un- 
gratefully   betrays  them,  and    becomes  a   tyrant.      Under 
this  government  laws  are  not  regarded.      Caprice,  and  the 
will  of  the  tyrant,  alone  govern.      Wars  are  frequent,  se- 
ditious occur  often,  the   spirited  and   free  are  silenced  by 
bribery  or  death.     The  tyrant  commences  his  reign  with 
affable  and  courteous  manners,  and  with  modestly  declin- 
ii  g  the  title  of  monarch;  lavishes  presents  on  many  who 
can  serve  him,  appears  the  friend  of  the  poor,  but,  when 
fully  established,  extorts  money  by   every   species  of  de- 
vice.    Wisdom,  learning  and  virtue  are  discouraged.     He 
makes  the  slaves  free,  and  constitutes  them  his  body-guard. 
The   wealth  dedicated    to    sacred    purposes,    is    gradually 
brought  into  his  treasury.      Rich  and  ambitious  men  are 
considered  enemies  to  the  state,  and  are  often  sacrificed  in 
order  to  get  rid  of  opposition,  and  sometimes  to  become 
possessed  of  their  wealth.      Plato  then  describes  the  tyran- 
nical man,  that  is,  such  a  disposition  as  is  peculiarly  suited 
to  turn  traitor  to  the  people,  when  their  affections  have  in- 
discreetly elevated  him  to  supreme  power.      Such   a  man, 
he    thinks,    will   be  faithless,   unjust,   a   coward,    envious, 
cruel,   and   a   promoter  of  all   vice;  and  according  to  his 
doctrine  of  numbers,  is  729  removes  distant  from  a  king,  the 
tyrant  being  represented   by  the  multiple  of  1.    3.   9.   27. 
729.   the  first  of  which  denotes  the  unity  and  perfection 
of  the  royal  character,  as  the  fifth  does  its  last  faint  image, 
the  tyrannic  character. 

5.  Of  The  Right  Government.  Aristotle,  in  the 
commencement  of  his  second  book  of  politics,  enters  into 
a  brief  examination  of  his  illustrious  master's  opinions 
concerning   the  imaginary  best  form  of  government;  and 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  S97 

with  that  respect  for  truth  which  so  strongly  marked  his 
life,  he  does  not  hesitate  to  speak  with  all  plainness  his 
objections  to  the  fanciful  notions  of  government  set  forth 
by  Plato  in  the  work  'De  Repuhlica. '  But  though  Aristo- 
tle declines  to  adopt  the  ideas  of  Plato  in  regard  to  the 
'right  government,'  he  thinks  that  this,  in  common  with 
other  ideal  forms,  is  worthy  the  attention  of  the  political 
philosopher.  'In  order,'  says  Aristotle,  'to  discover  and 
ascertain  that  form  of  society  under  which  those  would 
prefer  to  live  who  were  at  liberty  to  choose  a  mode  of 
civil  existence  completely  agreeable  to  their  wish,  we  must 
not  only  consider  the  most  admired  political  institutions 
that  have  actually  prevailed  in  the  world,  but  likewise  ex- 
amine those  imaginary  plans  of  perfect  government  which 
fancy  has  devised,  and  which  philosophy  has  highly  ap- 
proved. Such  an  examination  will  enable  us  to  determine 
the  hitherto  undefined  limits  of  justice  and  utility,  in  mat- 
ters of  society  and  government,  and  will  thus  rescue  the 
present  work  from  the  reproach  of  being  undertaken  for 
the  unworthy  purposes  of  ostentation  or  censure.'* 

It  is  not  my  intention  to  collect  from  the  elaborate 
pages  of  the  treatise  'De  Republica'  the  ideas  of  Plato  as 
to  this  imaginary  or  perfect  republic.  It  would  be  rather 
curious  than  useful.  It  is  sufficient,  in  addition  to  what 
we  have  already  incidentally  stated  concerning  it,  to  re- 
mark that  it  is  a  species  of  simple  aristocracy,  so  consti- 
tuted, as  Plato  supposes,  as  forever  to  banish  vice  from  its 
dominions,  and  produce  a  state  of  unalloyed  human  hap- 
piness. In  this  republic  the  idea  that  a  commonwealth  is 
a  partnership,  is  carried  to  the  greatest  possible  length,  as 
it  demands  a  community,  not  only  of  all  possessions,  but 
even  of  wives  and  childien.  There  are  many  notions  of 
an  equally  impracticable  nature,  which  justify  the  sound- 

*  Gill.  Aris.  Poli.  Lib.  2,  p.  73. 


39$  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

ness  of  his  own  criticism,  when  he  states,  at  the  end  of  his 
ninth  book,  that  'the  city  we  have  now  established  exists 
only  in  our  reasoning,  since  it  is  no  where  on  earth,  as  I 
imagine.  But  in  heaven  there  is  probably  a  model  of  it 
for  any  one  inclining  to  contemplate  it,  and,  on  contemplat- 
ing it,  to  regulate  himself  accordingly.  And  it  is  of  no 
consequence  to  him  whether  it  does  actually  exist  any 
where,  or  shall  ever  exist  here.' 

The  preceding  account  of  Plato's  philosophical  opinions 
on  government,  which  we  have  collected  from  his  works 
with  some  pains,  contains  much  of  the  substantial  part  of 
the  treatises  entitled  'Politicus'  and  the  'Republic'  It 
has  been  an  ancient  fashion  to  extol  this  philosopher  as  the 
Divine  Plato;  and  his  ideal  republic,  in  common  with  his 
other  works,  has  been  lauded  in  nearly  all  ages  in  a  strain 
of  more  than  ordinary  eulogium.  Of  its  eloquence,  which 
Cicero  so  much  praises,  as  being  that  of  Jupiter  himself,  no 
one,  we  presume,  can  speak  but  in  terms  of  admiration; 
but  as  a  work  of  utility,  sound  sense,  and  real  knowledge, 
it  appears  to  us  to  fall  far  short  of  the  'Politics'  of  his  dis- 
tinguished pupil  Aristotle,  which  has  been  read  and  studied 
with  delight  and  great  advantage  at  all  times,  and  probably 
laid  the  foundation  of  Montesquieu's  immortal  work.  The 
treatise  De  Republica  has  been  studied,  we  apprehend,  but 
by  a  few,  though  it  may  be  entitled  to  the  incidental  merit 
of  having  originated  the  Oceana  of  Harrington,  the  Uto- 
pia of  Sir  Thomas  More,  and  various  other  like  works. 
We  shall  now  proceed  to  the  consideration 

Of  Socrates'  Views  of  Government.  We  have  al- 
ready stated  that  Plato  makes  Socrates  relate  the  whole  of 
the  ten  dialogues  of  the  Republic,  and  we  find  him  the 
chief  interlocutor  in  most  of  the  other  works  of  his  eminent 
pupil.  Hence  it  has  been  supposed  that  Plato  has  but 
echoed  the  opinions  of  his  master,  or  that  it  is  at  least  un- 
certain whether  it  be  Plato  or  Socrates  who  speaks. 


Lect.  IX.  OP    THE    FORMS    OF    GOVERNMENT.  399 

There  are  no  works  of  Socrates  extant;  but  on  the  sub- 
ject of  government,  Xenophon,  in  his  Memorabilia  of  So- 
crates, has  given  us  many  of  the  ascertained  opinions  of 
that  great  philosopher.  His  classification  of  governments, 
as  given  by  Xenophon,  is  briefly  and  in  substance  as  fol- 
lows.     He  enumerates  five  species  of  polity,  viz. 

1.  Regal  Government. 

2.  Tyranny. 

3.  Aristocracy. 

4.  Plutocracy. 

5.  Democracy. 

An  individual  who  governs  according  to  laws,  and  with 
the  consent  of  the  governed,  is  a  King. 

He  who  governs  without  fixed  laws,  against  consent,  and 
according  to  his  own  pleasure,  is  a  Tyrant. 

A  few  who  govern  with  consent,  justly,  and  according 
to  laws,  constitute  an  Aristocracy. 

A  few  who  have  power  because  of  their  wealth,  estab- 
lish a  Plutocracy.  And  when  people  of  all  classes  govern, 
though  justly,  and  according  to  laws,  the  government  is  a 
Democracy.* 

Of  Aristotle's  Views  of  Government.  Among  all 
ancient  philosophers  who  have  transmitted  us  their  views 
of  political  science,  none  appears  to  us  so  comprehensible, 
methodical  and  satisfactory  as  Aristotle.  His  work  en- 
titled 'Politics,'  merits  the  high  encomium  of  Dr  Taylor, 
who  pronounces  it  'one  of  the  most,  sterling  among  the 
works  of  antiquity,  and  an  inexhaustible  treasure  to  the 
statesman,  the  lawyer,  and  the  philosopher.'!  His  classifi- 
cation of  the  forms  of  government  differs  but  little  from 
those  of  his  illustrious  predecessors. 

When  the  publick  good  is  the  object  of  one  man  in  au- 
thority, Aristotle  calls  this  a  Regal  Government:     When 

*  Xen.  Mem.  Soc.  Book  4.  t  Taylor's  Civil  JLavr,  342. 


400  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

the  same  power  is  in  the  hands  of  a  few,  an  Aristocracy: 
And  when  in  the  hands  of  a  multitude,  a  Commonwealth, 
Polity  or  Republic. 

But  if  the  object  of  the  single  ruler  be  only  his  own  ad- 
vantage, it  is  then  a  Tyranny;  and  the  same  feature  turns 
an  Aristocracy  into  an  Oligarchy,  or  a  Republic  into  a 
Democracy.  Thus,  a  Regal  Government,  an  Aristocracy 
and  a  Republic  are  called  by  Aristotle  pure  governments; 
and  to  the  three  impure  governments  he  applies  the  names 
of  Tyranny,  Oligarchy  and  Democracy.  By  Monarchy 
he  means  simply  the  government  of  one  person,  which,  as 
in  Plato's  Epistle  to  Dionysius,  may  embrace  the  govern- 
ment of  a  tyrant  no  less  than  that  of  a  king.  The  Regal 
Government,  he  says,  is  of  five  kinds,  viz. 

1.  The  Heroic  Government.  This  is  the  rule  of  a 
king,  where  the  subjects  have  voluntarily  submitted  to 
him  civil,  military  and  religious  powers;  but  still  so  li- 
mited as  not  to  clothe  him  with  the  power  of  life  and 
death,  nor  any  other  authority  which  would  be  apt  to  be 
tyrannically  abused.  This  he  supposes  was  the  power 
possessed  by  kings  in  the  heroic  ages,  when  heroes  and 
demigods  are  believed  to  have  governed  men  with  the 
strictest  regard  to  justice.  This  government,  he  says, 
may  be  either  hereditary  or  elective. 

2.  The  Barbaric  Government.  This,  he  states,  pre- 
vailed among  the  Asiatic  barbarians.  The  king  is  absolute, 
but  yet  governs  according  to  laws.  The  power  is  heredi- 
tary only. 

3.  JEsymetic  Government.  It  is  so  called  from  the 
iEsymetes  of  ancient  Greece,  who  were  elective  tyrants, 
chosen  for  life,  or  for  a  limited  term,  or  for  some  special 
purpose,  but  with  powers  limited  whilst  they  endured. 
This  government  is  a  mixture  of  royalty  and  tyranny. 
He  exemplifies  it  by  Pittacus,  who  was  chosen  by  the  peo- 
ple of  Mitylene  to  conduct  the  war  against  the  exiles,  but 


I.ect.  IX.]     OF  THE  FORMS  OF  GOVKRXMKNT.         401 

who  cruelly  tyrannized  over  an  ill-fated  country.  This 
government,  you  perceive,  may  also  be  illustrated  by  the 
power  conferred  on  the  Roman  Dictator. 

4.  The  Spartan  Government.  This  he  represents  as 
a  limited  royalty,  hereditary,  but  conducted  with  justice, 
and  according  to  laws.  In  such  a  government  the  king  is 
a  general  in  war,  a  judge  in  peace,  and  the  chief  in  all 
matters  of  religion  not  specially  appropriated  to  the  priest- 
hood. He  exemplifies  this  form  by  the  government  of 
Sparta. 

5.  The  Regal  Government,  properly,  and  by  way  of 
distinction,  so  called.  This  he  conceives  to  be  the  most 
absolute  of  all,  because  the  king  is  the  most  eminently 
qualified.  Such  a  ruler  bears  to  the  state  the  same  relation 
as  a  good  master  to  his  family,  the  whole  sovereign  au- 
thority being  concentrated  in  him.  This  power,  he  says, 
is  derived  to  him  from  the  superior  excellence  of  his  cha- 
racter, the  preeminence  of  his  virtues.  This  doctrine 
Aristotle  himself  appears  to  advance  with  some  caution; 
but  being  desirous  perhaps  to  compliment  his  illustrious 
patron,  and  his  distinguished  pupil,  he  unfolds  his  doctrine 
on  this  subject  gradually,  as  if  the  native  honesty  of  his 
soul  had  some  conflict  with  his  desire  to  flatter  the  father 
and  the  son,  on  whom  his  fortunes  somewhat  depended. 
In  the  eighth  chapter  of  his  third  book,  he  seems  to  argue 
and  to  qualify  the  doctrine;  in  the  ninth  it  appears  more 
broadly;  and  in  the  conclusion  of  the  tenth  book,  it  is  dis- 
played in  all  its  nakedness  and  folly.  In  a  preceding  lec- 
ture we  stated  fully  our  views  of  this  subject.  The  people 
would,  no  doubt,  act  wisely  were  they  always  to  select 
the  most  virtuous  and  best  qualified  to  govern  them.  But 
we  cannot  admit  with  Aristotle,  that  knowledge  and  vir- 
tue confer  per  se  a  positive  right  to  governmental  power, 
or  that  such  persons  ought  to  be  exempt  from  all  govern- 
ment,   and   be    a  law  unto   themselves!     Laws,    says   he, 

51 


402  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

should  only  be  among  equals  in  kind,  and  it  would  be  as 
absurd  to  subject  the  preeminently  virtuous  and  wise  to 
laws,  as  it  was  in  the  fable  of  Antisthenes,  where  the  hare 
claimed  an  equality  of  power  and  rights  with  the  lion,  that 
king  of  the  forests.  And  after  exemplifying  his  doctrine 
still  further,  he  concludes  that  'all  men  should  cheerfully 
and  uniformly  obey  all  such  rulers,  and  acknowledge  the 
natural  and  perpetual  sovereignty  of  their  virtues.'* 

Of  Polybius'  Views  of  Government.  Not  a  great 
deal  is  known  of  the  opinions  of  Polybius  on  the  subject 
of  government.  In  a  fragment  of  the  sixth  book  of  his 
Roman  History,  which  is  appended  by  Spelman  to  his 
translation  of  the  'Roman  Antiquities'  of  Dionysius  of  Ha- 
licarnassus,  Polybius  remarks  that  'it  is  customary  to  estab- 
lish three  sorts  of  government,  viz.  'Kingly  Government, 
Aristocracy  and  Democracy;  upon  which  one  may  ask 
them,  whether  they  lay  these  down  as  the  only  forms  of 
polity,  or  as  the  best;  for  in  both  cases  they  seem  to  be 
in  an  errour,  since  it  is  manifest  that  the  best  form  of  go- 
vernment is  that  which  is  compounded  of  all  three.'*  Po- 
lybius then  proceeds  to  give,  somewhat  at  length,  his 
views  of  the  simple  governments,  and  of  their  natural  ten- 
dency to  degenerate.  He  applies  his  observations  to  the 
Roman  commonwealth  at  the  commencement  of  the  se- 
venth century  A.  U.  C,  at  that  period  in  a  most  flourishing 
condition;  and  though  he  considers  the  mixed  constitution 
of  Rome  as  at  that  time  the  most  perfect  model  of  go- 
vernment known  to  the  world,  yet  he  predicts  its  down- 
fall from  denned  causes,  and  with  a  degree  of  confidence 
almost  amounting  to  prophecy.  These  are  his  general 
views.  We  shall  now  inquire  more  particularly  into  his 
opinions. 

Polybius  considers  monarchy  as  the  first  form  of  go- 
vernment known  10  man,  and  the  work  of  nature  herself; 

*  Spel.  Rom.  Antiq.  391. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  403 

but  denies  that  any  has  ever  been  established  which  did  not 
contain  within  itself  the  seeds  of  its  own  degeneracy  and 
ultimate  dissolution.  These  inherent  infirmities  or  vices 
inevitably,  in  time,  convert  it  into  a  tyranny,  or  at  least 
into  an  aristocracy.  He  explains  the  reasons,  why  it  is  not 
in  the  nature  of  monarchy  to  continue  pure,  and  says  that 
when  aristocracy  is  raised  on  its  ruins,  the  laws  and  the 
rights  of  the  governed  will  be  respected  for  a  time,  that 
is,  until  the  similar  inherent  seeds  of  corruption  in  this 
form  also,  will  occasion  it  to  degenerate  into  an  oligarchy: 
That  ambition,  avarice,  and  other  odious  passions  will  dis- 
play themselves,  and  that  if  the  same  aristocratic  rulers  do 
not  fall  victims  to  the  disease,  their  descendants  most  pro- 
bably will.  He  further  states  that  the  oligarchy  thus  ge- 
nerated, will  in  turn  yield  to  a  democracy.  The  people 
will  become  disgusted  with  the  vices  of  their  rulers,  a 
leader  will  place  himself  at  the  head  of  the  multitude,  and 
those  in  power  will  be  at  once  displaced.  The  people 
may,  for  a  time,  be  happy  in  the  enjoyment  of  their  liber- 
ties, but,  after  a  while,  ambitious  and  intriguing  spirits  will 
appear,  and  a  monarchy  or  tyranny  will  be  re-established. 
This  is  the  eternal  round  of  revolutions  to  which,  in  the 
opinion  of  Polybius,  the  simple  forms  of  government  are 
subjected  by  a  law  of  their  very  nature.  He  therefore 
repudiates  the  whole  of  the  simple  forms,  as  essentially 
unstable,  but  admits  that  each  possesses  its  peculiar  virtues. 
Polybius  then  proceeds  to  comment  on  the  mixed  govern- 
ments. He  discourses  somewhat  largely  on  the  then  ex- 
isting Roman  polity,  points  out  the  theory  of  its  checks 
and  balances,  and  admits  that  the  three  elementary  forms 
are  so  admirably  united  in  it,  as  to  render  it  difficult  for 
any  one  to  pronounce  which  of  them  preponderates.  This 
equilibrium  is  declared  by  Aristotle  to  be  one  of  the  sur- 
est tests  of  a  good  and  durable  government,  and  notwith- 
standing this  eulogium  by  Polybius  on  the  constitution  of 


404  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

his  country,  looking  into  the  vista  of  futurity,  he  plainly 
unfolds  the  causes  of  Roman  degeneracy,  and  of  Roman 
subjection.  This  anticipation  of  the  future  destinies  of 
his  country  began  to  be  verified  as  early  as  the  seditions  of 
the  Gracchi,  and  was  completed  in  the  subsequent  over- 
throw and  ruin  of  the  commonwealth. 

There  can  be  no  doubt  of  the  general  philosophical 
correctness  of  this  theory  of  political  mutations;  and  Po- 
lybius  has  shown  himself  to  be  a  sagacious  politician,  and 
one  of  candour  and  decision,  in  thus  boldly  stating  a  doc- 
trine which  to  a  Roman  must  have  been  extremely  unpa- 
latable. The  student  will  here  observe  that  Polybius  was 
the  first  to  distinguish  democracy  into  pure  and  corrupt, 
by  distinct  names:  for  the  former  he  retains  the  name  of 
democracy,  whilst  to  the  latter  he  gives  the  name  of  och- 
locracy. We  may  remember  that  Plato,  in  'Pacificus,'  as- 
signs no  special  name  to  a  corrupt  democracy;  and  that 
Aristotle  always  uses  the  word  democracy  to  signify  a  cor- 
rupt government  by  the  people,  and  that  it  arises  from  vi- 
tiating a  republic  or  commonwealth. 

We  have  now  finished  our  brief  and  desultory  remarks 
on  Polybius;  but,  in  connexion  with  his  ideas  on  the  sub- 
ject of  mixed  government,  we  shall  advert  to  an  observa- 
tion of   Blackstone,  who   appears    not  very   correctly   to 
have  apprehended  the  theoretical,  or  even  practical  doc- 
trines of  the  ancients,  on  this  point  of  blending  the  prin- 
ciples of  the  three  elementary  forms  of  government.    The 
enlightened  Commentator  on  English  Law,  without  bring- 
ing to  his  view  the  Lacedsemonian  Commonwealth,  or  the 
mixed  constitution  of  Rome,  of  Carthage,  or  of  Crete,  and 
not  adverting  to  the  profound  views  of  Polybius,  seems  to 
suppose  that   the  ancients  had  in  general  no  idea  of  any 
other  permanent  form  of  government  than  those  of  mo- 
narchy, aristocracy  and  democracy.      And  to   justify  his 
opinion,   he  cites   a  passage  from  Cicero's  Fragment  'De 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  405 

Republica/  lib.  2,  and  one  from  the  Annals  of  Tacitus, 
lib.  4,  in  which  Cicero  is  merely  of  opinion  that  a  go- 
vernment constituted  of  the  three  simple  forms  would  be 
the  best,  and  Tacitus  rejects  the  doctrine  as  visionary  and 
impracticable.*  It  cannot,  however,  have  been  the  opi- 
nion of  this  able  lawyer  and  polite  scholar,  that  mixed 
forms  of  government  were  unknown  to  the  practice  or  to 
the  political  philosophy  of  ancient  nations.  Nor  could  he 
have  supposed  that  Cicero  designed  to  advance  a  novel  or 
untried  opinion;  or,  indeed,  that  he  and  Tacitus  did  not 
know  the  precise  character  of  the  Roman  government,  in 
every  stage  of  its  history.  His  silence  on  the  doctrines 
of  Polybius  is,  however,  a  little  remarkable,  since  there 
can  be  no  mistake  in  regard  to  the  clear  views  which  were 
entertained  on  the  subject  by  that  sensible  historian.  The 
commentator,  perhaps,  was  so  strongly  impressed  with  the 
passing  excellence  of  the  well  contrived  mixed  system  of 
his  own  government,  as  to  hold  in  no  account  the  more 
rude,  but  still  praiseworthy  approaches  of  the  ancients 
towards  the  now  well  known  theory  of  governmental  checks 
and  balances.  Polybius,  indeed,  has  indiscreetly  said  that 
'it  is  impossible  to  invent  a  more  perfect  system  of  govern- 
ment,' alluding  to  the  existing  government  of  his  country. 
Modern  days  have  proved  him  mistaken;  but  it  should  be 
borne  in  mind  that  we,  also,  shall  have  a  posterity,  whose 
improvements  in  the  art  and  philosophy  of  government 
may  so  greatly  excel  any  of  our  present  conceptions,  that 
they  may  with  justice  less  respect  the  great  system  of  En- 
glish constitutional  law,  than  did  the  distinguished  com- 
mentator the  various  systems  known  or  practised  by  the 
ancients. 

Let   us   now    pass    on   to   the   opinions  of  some  others 
among  the  ancients. 

*  1  Black.  Com.  49. 


406  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

Of  Charondas  and  Zaleucus.  The  laws  and  institu- 
tions established  by  these  two  early  legislators,  have  gained 
them  much  celebrity.  Very  little,  however,  is  known  of 
either  of  them.  The  account  we  have  of  Charondas  is 
chiefly  from  a  brief  notice  of  him  by  Diodorus  Siculus, 
which,  in  substance,  is  this.  The  ancient  Sybaris,  a  Gre- 
cian city  and  colony  in  Italy,  was  an  aristocratic  republic. 
Before  the  time  of  Charondas,  it  underwent  four  remarkable 
revolutions.  The  first  occurred  under  its  governor  or 
chief,  Telys,  who  courted  the  people,  and  excited  a  revolu- 
tion against  the  aristocracy  of  the  city.  The  fortunes  of 
the  wealthy  were  confiscated,  and  they  were  banished 
from  the  colony.  These  outcasts  having  been  kindly  re- 
ceived by  the  city  of  Crotona,  of  which  Pythagoras  was  a 
distinguished  citizen,  Telys  demanded  their  surrender. 
This  being  refused,  he  declared  war  against  Crotona,  but 
was  totally  defeated  by  Milo,  who  gave  Sybaris  up  to  pil- 
lage, and  left  it  in  ruins.  Half  a  century  after  this,  Syba- 
ris was  rebuilt,  but  was  again  destroyed  by  the  Crotonians. 
Callimachus,  Archon  of  Athens,  again  revived  it,  under 
the  name,  however,  of  Thurium.  It  then  became  popu- 
lous, wealthy  and  powerful.  No  less  than  twenty-five 
cities,  and  a  splendid  capital,  were  added.  Luxury  and 
effeminacy  increased  to  such  a  degree  as  to  render  their 
name  proverbial.  An  aristocracy  was  formed,  chiefly  by 
the  former  inhabitants  of  Sybaris.  They  seized  on  all  the 
valuable  lands  in  the  vicinity  of  the  city,  and  left  the  resi- 
due to  the  new  comers.  All  offices  of  trust  and  profit 
were  monopolized  by  them,  and  many  invidious  distinc- 
tions maintained  between  them  and  the  foreign  citizens; 
whilst  the  poor  were  cither  disregarded  or  oppressed. 
Force  and  courage  were,  however,  on  the  side  of  the  peo- 
ple, and  a  civil  war  ensued.  The  nobility  were  sacrificed, 
and  the  people  proceeded  without  delay  to  the  establish- 
ment of  a  new  government.      They  entered  into  an  alliance 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  407 

with  Crotona,  and  received  into  their  community  emigrants 
from  all  parts  of  Greece.  They  divided  all  the  inhabitants 
into  ten  tribes,  chose  Charondas  for  their  legislator,  and  es- 
tablished a  democratic  government.  Charondas,  it  is  sup- 
posed, suggested  many  wise  laws,  and  excellent  institu- 
tions. Aristotle  says  that  his  laws  surpass  in  elegance 
and  accuracy  the  judicial  and  legislative  compositions 
even  of  his  own  time.* 

The  fragments  of  his  laws  preserved  by  Diodorus  Sicu- 
lus,  relate  rather  to  the  civil,  than  the  political  state,  little 
being  known  as  to  the  fundamental  laws,  or  the  organiza- 
tion of  his  government.  Scanty  as  they  are,  they  appear 
to  have  excited  the  respect  of  those  who  perhaps  knew  as 
little  of  his  laws  and  institutions  generally  as  we  do. 
They  are,  in  substance,  as  follows:    . 

1.  Masters,  supported  at  the  publick  expense,  shall  be 
established,  and  every  male  child  shall  be  taught  to  read 
and  to  write. 

2.  No  one  shall  be  a  member  of  the  publick  councils, 
who,  having  children,  shall  marry  a  second  time. 

3.  Any  one  convicted  of  slander,  shall  be  conducted 
through  the  streets,,  crowned  with  tamarisk,  t 

*  Aris.  Pol.  Lib.  2,  ch.  10. 

f  Craving  indulgence  for  a  momentary  digression  into  the  region  of 
floAvers,  I  would  remark  that  this  shrub,  botanically  called  Tamarix,  has 
in  many  ancient  nations  enjoyed  a  like  reputation  of  exerting  some  moral 
or  other  influence  over  the  human  heart  and  character.  It  is  supposed  to 
be  derived  from  the  Hebrew  word  tamaris,  to  cleanse;  and  hence  appro- 
priately worn  by  the  slanderer,  whose  foul  heart  is  supposed  to  need  puri- 
fication. It  is  frequently  alluded  to  by  Virgil  in  his  Eclogues,  under  the 
name  of  Myrica,  and  is  called  by  Pliny  Bria  Sylvestris.  Parkinson,  in  his 
Herbal,  page  1479,  has  described  this  shrub,  which  is  indigenous  in  Eng- 
land, and  indeed  in  most  of  the  temperate  countries  of  the  old  world, 
though  entirely  unknown,  I  believe,  to  the  botany  of  this  continent,  at  least 
of  the  United  States.  Phillips  in  his  splendid  and  fanciful  work,  entitled 
'Floral  Emblems,'  places  the  Tamarix  under  the  head  of  'Crime.'  He 
says  that  it  was  a  custom  with  the  Romans  to  put  wreaths  of  this  flexible 


-40S  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

4.  No  one  shall  associate  with  people  of  vicious  charac- 
ter. 

5.  Laws  shall  be  changed  only  when  the  citizen  who 
proposes  the  alteration  or  repeal,  appears  in  the  publick  as- 
sembly with  a  halter  round  his  neck,  by  which  he  shall 
be  hung  if  the  proposed  change  be  not  adopted  by  the 
people. 

6.  The  guardianship  of  the  estate  of  orphans  shall  be  en- 
trusted to  relatives  on  the  side  of  the  father,  and  the  per- 
sons and  education  of  orphans  shall  be  entrusted  to  rela- 
tives on  the  part  of  the  mother. 

7.  Those  who  refuse  to  fight  for  their  country,  shall  not 
be  put  to  death,  as  formerly,  but  shall  be  exposed  in  the 
publick  square,  in  woman's  apparel,  during  three  days. 

8.  No  one  shall  appear  armed  in  the  publick  square. 
However  wise  the  political  laws  may  have  been,  all 

agree  that  the  government  was  too  democratic,  and  that  it 
was  not  sufficiently  balanced.  In  regard  to  the  last  law  we 
have  mentioned,  it  is  related  of  Charondas  that,  on  being 
informed,  on  a  certain  occasion,  that  great  commotions  had 
taken  place,  he  hastened,  with  his  sword  on,  into  the  pub- 
lick assembly,  in  order  to  suppress  the  disorder.  Being 
reproached  with  violating  one  of  his  own  laws,  (though  it 
was  merely  accidental  that  he  then  appeared  with  his 
sword,)  he  hastily  replied,  'I  shall  vindicate  the  law,'  and 
immediately  plunged  the  sword  into  his  own  heart.  Thus 
terminated  the  government  and  career  of  this  patriot  and 
legislator.* 

Zaleucus  has  also  great  traditionary  fame,  as  a  wise  le- 
gislator; but  his  laws  and  institutions  have  almost  wholly 

plant  on  the  heads  of  criminals;  that  it  is  from  this  circumstance  called 
the  accursed  or  unhappy  tamarisk. 

It  belongs  to  the  Pentandria  Triginia,  artificial  class  and  order  of  Linnaeus, 
and  to  his  natural  order,  Succulentce. 

*  Diod.  Sic.  Lib.  12,  page  486.  Bentley's  Dissertation  upon  Phalaris,  368. 


Lect.  IX]  OF    THE     FORMS    OF    GOVERNMENT.  400 

perished.  It  is  a  little  singular  that  several  of  the  laws 
&c.  of  Charondas  have  been  ascribed  to  Zaleucus,  and  some 
which  are  with  confidence  attributed  to  Zaleucus,  are 
placed  by  others  to  the  account  of  Charondas.  Thus,  for 
example,  the  law  relative  to  the  repeal  or  modification  of 
laws,  is  ascribed  by  Demosthenes  and  Stoboeus  to  Zaleucus. 
So,  also,  the  celebrated  preamble  to  the  code  of  Zaleucus, 
which  is  still  extant,  has  been  with  equal  confidence  given 
to  Charondas.  A  few  of  the  laws  of  Zaleucus  are  to  be 
found  in  Plutarch's  lives. 

Both  Zaleucus  and  Charondas  are  said  to  have  been  dis- 
ciples of  Pythagoras.  The  government  of  the  former  was 
more  aristocratic  than  that  of  the  latter,  and  was  also  much 
more  lasting.  The  respect  of  Zaleucus  for  religion  is 
strongly  manifested  in  his  preamble;  and  the  other  two 
springs  of  his  government  are  said  to  have  been  a  high 
sense  of  honour,  and  a  strict  sense  of  obligation. 

We  shall  conclude  our  examination  of  the  views  of  an- 
cient legislators  and  philosophers  on  the  subject  of  the 
forms  of  government,  and  of  political  science,  with  ad- 
verting to  Cicero,  intelligent,  pleasing  and  eloquent  al- 
ways, quern  appelldsse,  lauddsse  est.  The  opinions  of 
this  polite,  and  no  less  sound  philosopher,  on  the  topics  of 
our  inquiry,  are  to  be  found  in  his  treatise  'De  Legibus,' 
and  in  the  fragments  which  have  been  preserved  of  his 
treatise  'De  Republica.' 

The  fate  of  the  treatise  De  Republica,  also  known  under 
the  name  of  'The  Dialogues,'  is  familiar  to  every  scholar. 
'Political  students,'  says  Mr  Macaulay,  'have  reason  deeply 
to  regret  the  loss  of  Cicero's  Treatise.  Among  many  in- 
teresting discussions,  it  doubtless  contained  a  classification 
of  forms  of  government;  and  it  is  probable  that  Cicero  fol- 
lowed the  old  division  of  Socrates,  more  than  that  which 
is  peculiar  to  Plato.      But  whatever  system  he  adopted,  he 


62 


410  or    the    forms   or    GOVERNMENT.  [Lect.  IX. 

no  doubt  varied  it  so  as  to  accommodate  it  to  the  prefer- 
ence which  he  was  ever  zealous  to  attribute  to  the  Roman 
constitution.'* 

The  knowledge  possessed  in  modern  times  of  this  fa- 
vourite work  of  the  philosopher  of  Tusculum,  was  derived, 
until  very  recently,  wholly  from  a  few  scattered  fragments 
preserved  by  various  writers  in  the  form  of  quotations; 
principally  by  Lactantius,  Aulus  Gellius,  St.  Augustine, 
Macrobius,  Prisciflian,  Seneca,  and  by  Cicero  himself. 
The  whole  of  these  however,  if  collected,  would  not 
amount  to  more  than  one-twelfth  of  the  treatise  when  en- 
tire. During  many  centuries,  the  learned  world  deplored 
the  loss  of  a  treatise  so  much  praised,  not  only  by  the 
friends  and  cotemporaries  of  its  illustrious  autho*,  but  by 
the  philosophers  of  all  times,  since  the  disappearance  of 
the  work.  No  satisfactory  evidence  is  said  to  exist  of 
their  being  a  single  copy  of  this  production  extant,  since 
the  tenth  century,  till,  singular  and  interesting  to  relate,  the 
work  was  discovered,  and  partly  brought  to  light,  by  Sig. 
Mai,  the  present  librarian  of  the  Vatican. 

It  appears  that  St.  Augustine,  who  so  frequently  alludes 
to  this  work  in  his  treatise  'Be  Civitate  Dei,'  obliterated 
from  the  parchment  which  contained  it,  this  relic  of  Ci- 
cero's latter  and  more  mature  genius,  and  supplied  its 
place  with  his  own  commentaries  on  the  Psalms  of  David. 
The  practice  of  effacing  former  inscriptions  for  the  sake  of 
the  parchment,  then  so  valuable,  had  been  long  known,  and 
led  to  the  librarian's  interesting  discovery.  By  the  appli- 
cation of  chemical  agents,  the  commentary  of  St.  Augus- 
tine was  in  turn  effaced,  and  Cicero's  treatise  made  in  part 
to  stand  forth,  in  nearly  all  its  original  accuracy.  Still, 
however,  these  discovered  portions  amount  only  to  'about 
one-fourth  of  the  entire  work.      They,  together  with  the 


•  Mar.au.  Ruii.  389 


Lect.  IX  }  OT    THE     r0BMS    OP    GOVERNMENT.  411 

former  fragments,  have  recently  been  published  by  Sig. 
Mai,  with  explanatory  notes,  and  an  interesting  narrative 
of  the  discovery.  This  librarian's  work  has  not  yet  reach- 
ed the  American  public,  and  I  have  no  further  knowledge 
of  it  than  what  has  been  derived  from  the  English  and 
American  literary  journals,  by  which  it  has  been  conside- 
rably praised.  From  Ihe  specimens,  however,  which  are 
given  it  appears  to  me  that  the  treatise  De  Repub/icd, 
even  in  its  present  form,  is  to  be  valued  more  for  its  eupho- 
nic and  glowing  eloquence,  than  for  solid  or  valuable  infor- 
mation in  regard  to  the  views  of  Cicero  or  the  ancients 
on  the  subject  of  political  science,  and  the  forms  of  go- 
vernment. Cicero  may  have  aimed  at  the  production  of  a 
work,  not  only  similar  in  title  to  that  of  his  favourite  Plato, 
but  reserrrbling  it  in  that  which  we  think  mainly  distinguish- 
es the  work  of  the  Greek  philosopher,  its  style,  which,  as 
Cicero  himself  asserts,  the  gods  would  not  fail  to  adopt, 
were  they  called  to  use  the  language  of  men.  If  this  were 
the  desire  of  the  Roman  orator,  his  style  would  be  highly 
polished,  to  the  prejudice,  perhaps,  of  substance,  and  that 
deep  and  elaborate  knowledge  which  it  would  be  so  desi- 
rable at  this  day  to  find  in  it. 

From  the  information  we  have  of  the  work  thus  brought 
from  its  concealment,  we  find  that  Cicero,  in  his  first  book, 
speaks  of  the  origin  of  society  and  government,  and  of  the 
advantages  and  disadvantages  of  the  simple  forms  of  go- 
vernment; the  whole  of  which  is  considered  by  him  in 
a  manner  very  similar  to  that  of  Socrates,  of  Aristotle, 
and  of  Plato  in  'The  Pacificus,'  verifying  the  supposition 
of  Mr  Macaulay  to  which  we  have  already  alluded,  that 
in  the  last  treatise  he  did  not  doubt  that  Cicero  had 
treated  the  subject  of  government,  and  its  various  forms, 
in  the  manner  rather  of  Socrates,  than  of  Plato  in  the  Re- 
public; and  further,  that  he  presumed  the  government  to 
which  Cicero  would  manifest  a  decided  preference,  would 


412  OF    THE     FORMS    OF    GOVERNMENT.  [Lect.  IX. 

be  of  the  mixed  form,  similar  to  that  of  Rome.  Although 
the  anticipations  of  this  writer  have  been  realized  to  this 
extent,  yet  his  expectation  in  regard  to  the  value  and  ex- 
cellence of  the  lost  opinions  of  Cicero,  does  not  seem  to  be 
justified  by  what  has  been  redeemed  from  darkness,  by  Sig. 
Mai's  discovery.  In  the  second  book  of  this  treatise,  Cicero 
speaks  of  the  Roman  government,  which,  as  he  thinks,  com- 
bines the  characteristic  excellencies  of  the  three  elementary 
forms.  He  then  points  out  the  liability  of  these  simple 
forms  to  degenerate  into  tyranny,  oligarchy  or  anarchy; 
which  is  a  view  very  similar  to  that  which  we  have  stated 
from  Polybius.  The  fragments  of  the  third  book  are  taken 
up  chiefly  in  the  discussion  of  the  benefits  which  flow  from 
the  virtuous  administration  of  a  government;  and  the  re- 
mains of  the  fourth  and  fifth  books  are  extremely,  meagre, 
very  little  being  known  even  of  their  general  contents. 
To  the  sixth  book  it  is  said  that  Sig.  Mai's  discovery 
has  added  nothing.  It  is  known,  however,  to  have  con- 
tained (as  Plato's  Republic  does)  a  description  of  an  ima- 
ginary perfect  man,  or  rather  citizen.  From  the  whole 
then,  as  far  as  we  have  been  able  to  ascertain  the  extent 
and  value  of  the  fragments  lately  brought  to  light,  we 
cannot  perceive  that  much  has  been  added  to  cur  stock  of 
knowledge  in  regard  to  the  opinions  of  the  ancients  gene- 
rally, or  of  Cicero  in  particular,  as  to  the  theory  of  govern- 
ment, especially  of  the  mixed  kind,  in  which  alone  are 
the  modern  nations  much  interested,  the  doctrine  of  checks 
and  balances  in  political  rule  being  at  this  day  a  topic  of 
the  greatest  interest  to  the  statesman  and  philosopher.  We 
admit  that  our  means  of  judging  of  Sig.  Mai's  new  edition 
of  the  treatise  De  Republicu,  are  very  limited.  Every 
polite  scholar,  we  are  sure,  will  heartily  welcome  every 
new  period  from  the  honeyed  pen  of  Cicero.  But  those 
who  are  in  search  of  sound  opinions  on  the  true  theory  of 


JLect.  IX.;  OF    THE    FORMS    OF    GOVERNMENT.  413 

government,  will  find  perhaps  in  these  new  fragments  more 
fascination  than  knowledge.* 

Having  completed  the  examination,  as  far  as  we  design- 
ed, of  the  opinions  of  ancient  legislators  and  philosophers, 
we  shall  now  proceed  to  a  similar  inquiry  into  the  doc- 
trines of  some  of  the  more  distinguished  among  the  mo- 
derns; after  which  we  shall  take  up  the  remaining  topics, 
as  designated  in  our  syllabus. 

Among  the  moderns,  those  best  known  to  the  English 
and  American  jurisprudent,  as  having  contributed  largely 
to  the  improvement  of  the  science  of  political  and  consti- 
tutional legislation,  are  Machiavel,  Harrington,  Sidney, 
Montesquieu,  Milton,  Locke,  Bolingbroke,  Hume,  Frede- 
rick II.,  Napoleon,  Bentham,  and  the  Authors  of  the  Fede- 
ralist. Each  has  great  merit,  and  all  have,  in  various  de- 
grees, and  in  different  ways  indeed,  considerably  enlarged 
the  boundaries  of  this  science,  and  supplied  materials 
whereby  the  civil  and  political  liberties  of  the  subject  or 
citizen  have  been  greatly  augmented  and  secured.  We 
shall  present  to  you  a  brief  notice  of  the  principal  works 
and  leading  doctrines  of  these  distinguished  writers;  our 
chief  object  being  to  invite  your  attention  to  them,  by  ma- 
king you  somewhat  acquainted  with  their  achievements  in 
the  field  we  are  hastily  surveying. 

1.  Of  Machiavel.  This  celebrated  political  writer 
was  born  at  Florence,  it  is  supposed  in  1469.  It  has 
been  his  fate,  while  justly  eminent  for  genius,  learning, 
and  worth  of  the  first  order,  to  have  been  regarded  by 
many  as  given  over  to  vices  of  the  most  open  and  heinous 
character,  as  blasphemy  and  atheism.  Before  we  proceed 
to  our  cursory  notice  of  his  works,  we  shall  examine  a  lit- 
tle into  the  celebrated  controversy  which  exists  in  relation 

*  Since  the  present  lecture  was  delivered,  Sig.  Mai's  work  bas  appeared 
in  this  country.  We  have  carefully  examined  it,  but  find  no  occasion  to 
vary  the  foregoing  remarks. 


414  OF    THE    FORiMS    OF    GOVERNMENT-  [Lect.  IX. 

to  the  character  and  design  of  one  of  them,  entitled  'The 
Prince;'  a  controversy  in  the  republic  of  letters,  which 
may  be  regarded  as  a  phenomenon,  and  which  remains  to 
this  day  not  entirely  settled,  though  more  than  three  cen- 
turies have  elapsed  since  the  publication  of  the  work. 
Yet  the  work  itself  is  perfect,  free  from  mystery,  unequi- 
vocal in  its  expressions,  full  of  illustrative  examples  and, 
as  we  think,  consistent  in  its  design  throughout.  Machia- 
vel  is  the  author  of  several  works;  but  those  of  most  re- 
nown, which  have  been  read  in  all  nations,  studied  by 
emperors,  kings  and  scholars,  and  have  been  equally  the 
favourites  of  tyrants,  and  the  zealous  friends  and  cham- 
pions of  freedom,  are  his  'Prince,'  the  'Discourses  on  the 
First  Decade  of  Livy,'  and  his  'History  of  Florence.' 

The  controversy  to  which  we  have  alluded,  relates  chief- 
ly, as  we  have  stated,  to  his  'Prince.'  By  one  party  it  is 
strongly  maintained,  that  he  stands  a  solitary  example  of  a 
writer  who  has  undisguisedly  laboured,  in  a  methodical 
and  learned  treatise,  to  instruct  rulers  in  the  odious  art  of 
tyranny;  to  reduce  the  scheme  of  absolute  government  to 
a  science;  and,  finally,  to  present  to  future  sovereigns  a 
manual  of  instruction  in  the  detestable  policy  which  shall 
mete  out  to  their  subjects  as  little  of  the  goods  of  life  as 
possible,  while  it  extracts  from  them  whatever  may  be  re- 
quired for  the  wealth,  the  pageantry,  the  power,  and  the 
aggrandizement  of  the  prince.  Those  who  support  this 
opinion,  have  spoken  of  Machiavelism  and  tyranny  as 
strictly  synonymous.  They  regard  his  policy,  not  only  as 
a  system  of  oppression,  but  of  the  basest  intrigue  and 
perfidy. 

By  another  party  it  is  urged  with  equal  confidence,  that 
tyranny  never  had  a  greater  enemy  than  in  Machiavel; 
that  the  whole  work  is  a  bitter  satire  on  the  actual  con- 
duct of  tyrannical  princes;  that  under  pretence  of  in- 
structing sovereigns,  he  has  given  the  most  important  les- 


Lect.  IX.J  OF    THE     FORMS    OF    GOVERNMENT.  415 

sons  to  the  people;  and  that  the  arts  of  government,  as 
they  are  often  practised,  are  exposed,  not  for  imitation, 
but  for  abhorrence.  There  is  a  third,  and,  indeed,  a  fourth 
opinion  in  regard  to  this  celebrated  work,  viz.  that  Machi- 
avel  had  no  very  definite  or  fixed  design;  that  'The  Prince* 
was  intended  neither  as  a  manual  for  tyrants,  nor  a  guide 
for  republicans,  but  was  written  more  through  spleen,  or  a 
desire  to  evince  his  sagacity  and  great  versatility  of  genius, 
than  for  any  other  cause.  On  which  side  of  this  old  con- 
troversy the  truth  lies,  is  perhaps  not  extremely  material, 
as  it  is  very  evident  that,  be  the  author's  design  what  it 
may,  lessons  useful  both  to  the  arbitrary  views  of  monarchs, 
and  the  liberal  schemes  of  a  people,  may  be  extracted  from 
it;  though,  on  the  whole,  we  regard  the  works  of  Machia- 
vel,  and  this  among  the  number,  as  having  a  tendency  de- 
cidedly more  favourable  to  liberty  than  to  tyranny.  We 
shall  pursue  the  subject,  and  place  before  the  student  our 
reasons  for  believing  that  Machiavel  has  been  greatly  tra- 
duced. It  will  be  important  to  recollect  that  Machiavel 
has  been  accused,  not  only  of  being  the  friend  of  arbitrary 
rule,  and  of  teaching  despots  how  to  tyrannize,  but  also 
of  the  opposite  offence  of  so  greatly  favouring  a  demo- 
cratic form  of  government,  as  to  have  been  induced  to 
teach  the  principles  of  insubordination,  and  to  excite  the 
people  to  rebellion.  Charges  so  different  in  their  nature 
cannot  be  easily  credited,  and,  of  themselves,  seem  to  raise 
a  presumption  of  innocence  of  both.  In  such  a  contro- 
versy, we  think  Machiavel  is  entitled  to  be  heard,  and  to 
testify  in  his  own  cause.  He  has  had  many  friends,  indeed, 
who  have  declared  their  belief  in  the  purity  of  his  inten- 
tions; but  we  shall  first  refer  to  his  own  vindication,  in  his 
letter  addressed  to  his  friend  Zenobio.  *  In  that  letter  he 
vindicates  himself,  first,  against  the  charge  of  such  affec- 

*  Vide  Had.  Misc.  vol.  1,  78. 


416  OF    THE     FORMS    OF    GOVERNMENT.  [Lect.  lX. 

tion  for  democracy  as  indicates  a  rebellious  spirit;  second- 
ly, against  the  offence  of  impiety,  and  of  vilifying  the 
church;  and  lastly,  against  the  accusation  of  teaching  mo- 
narchs,  in  his  book  of  'The  Prince/  all  the  execrable  villa- 
nies  that  can  be  invented,  and  instructing  them  how  to 
break  faith,  and  so  to  oppress  and  enslave  their  subjects. 
In  regard  to  this  charge,  he  concludes  his  letter  thus:  'I 
come  now  to  the  last,  which  is  that  I  teach  princes  villany, 
and  how  to  enslave  and  oppress  their  subjects.  If  any  man 
will  read  over  my  book  of  'The  Prince'  with  impartiality 
and  ordinary  charity,  he  will  easily  perceive  that  it  is  not 
my  intention  therein  to  recommend  that  government,  or 
those  men,  there  described  to  the  world;  much  less  to 
teach  men  to  trample  upon  good  men,  and  all  that  is  sacred 
and  venerable  upon  earth,  laws,  religion,  honesty,  and 
what  not.  If  I  have  been  a  little  too  punctual  in  descri- 
bing these  monsters,  and  drawn  them  to  the  life,  in  all  their 
lineaments  and  colours,  I  hope  mankind  will  know  them 
the  better,  and  avoid  them;  my  treatise  being  both  a  satire 
against  them,  and  a  true  character  of  them.'  This  letter 
bears  date  April  1,  1537.* 

That  this  is  the  true  light  in  which  this  work  ought  to 
be  regarded,  also  appears  manifest  when  we  see  who  have 
been  generally  the  advocates  of  the  opposite  opinion. 
His  vehement  censure  of  the  abuses  of  the  court  of  Rome 
brought  upon  his  name  and  writings  the  thunders  of  the 
Papal  See,  which  were  issued  against  him  many  years 
after  his  death.  During  his  life,  Machiavel  was  found  but 
little  fault  with  by  the  church.  But  more  than  half  a 
century  after,  we  find  that  by  a  bull  of  Clement  VIII.  'The 
Prince'  was  condemned,  and  every  one  held  liable  to  ex- 

*I  find,  by  a  letter  of  the  Bishop  of  Gloucester,  daled  May,  1760, 
there  is  reason  to  doubt  the  genuineness  of  this  vindication,  and  that  it  is 
the  production  either  of  Mr  Nevil,  the  author  of  Plato  Redivivus,  or  of  the 
Marquis  of  Wharton. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  417 

communication  who  should  read  it.  Another  class  of  ene- 
mies to  the  fame  of  this  great  genius  consists  of  the  friends 
of  absolute  monarchy;  for  on  the  reestablishment  of  des- 
potism in  Florence,  Machiavel  was  deprived  of  all  office, 
imprisoned,  and  even  tortured;  a  strong  proof  of  the  ge- 
neral tendency  of  his  writings,  and  the  true  acceptation  in 
which  they  were  held  by  the  advocates  of  unlimited  rule; 
and  that  the  idea  of  his  deliberately  teaching  the  art  of 
tyranny,  is  without  the  least  foundation.  His  enemies, 
however,  have  inferred  that  'The  Prince'  was  seriously 
intended  thus  to  instruct  monarchs,  from  the  apparent 
absence  of  irony,  from  its  didactic  character,  and  from 
there  being,  as  is  said,  similar  doctrines  in  the  Discourses 
on  Livy.  Of  this  opinion  are  many  persons  of  learning 
and  discrimination,  as  Moreri,  Cardinal  Pole,  Rupert,  Ten- 
hove,  Lucchesini,  Jovius,  Frederick  of  Prussia,  Voltaire, 
Tiraboschi,  Ambrose  Catharinus,  Mr  Roscoe,  and  Lord 
Lyttleton,  the  last  of  whom,  though  he  admires  the  'Dis- 
courses,' regards  'The  Prince'  as  an  infamous  production, 
though  written,  as  he  seems  to  think,  not  so  much  from 
an  utter  recklessness  of  principle,  as  to  display  his  genius 
in  politics,  and  gratify  the  vanity  of  excelling  all  others 
in  teaching  that  art* 

Let  us  now  advert  to  some  of  those  who  have  spoken  fa- 
vourably both  of  the  design  of  the  author,  and  the  tenden- 
cy of  the  work.  It  must  be  conceded  that  those  who  lived 
with,  and  intimately  knew  Machiavel,  entertained  no  doubt 
as  to  his  republican  opinions,  or  that  his  works  were 
designed  by  him  to  display,  not  what  a  prince  ought  to 
do,  but  what  he  frequently  practises.  The  celebrated 
Harrington,  that  famous  advocate  of  liberty,  appears  to  have 
cherished  no  doubt  on  this  subject.  When  unexpectedly 
summoned  to  the  Tower  on  a  charge  of  seditious  practices, 

v  Litt.  Dial,  of  the  Dead,  dial,  xii,  page  90. 


418  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

and  of  too  much  freedom  in  his  writings,  he  justifies  him- 
self by  the  examples  of  Aristotle,  Plato,  Livy  and  Machi- 
avel,  all  of  whom,  and  especially  the  last,  he  regards  as 
friendly  to  the  civil  and  political  liberties  of  man.*  Of 
the  same  opinion  was  Albericus  Gentilis,  who  considered 
both  the  design  and  tendency  of  the  work  to  be  satirical. t 
And  Lord  Bacon  in  his  treatise  'De  Augmentis  Scientia- 
rum,'  observes  that,  'A  serious  and  prudent  description  of 
the  crimes  and  artifices  of  men  is  to  be  considered  one  of 
the  greatest  bulwarks  of  virtue  and  probity.  We  are  hence 
beholden  to  Machiavel  and  such  writers,  who  openly  and 
unmaskedly  relate  what  men  do  in  fact,  and  not  what  they 
ought  to  do.'i  § 

In  that  learned,  witty  and  able  essay  of  Allen's,  entitled 
'Killing  no  Murder,'  addressed  by  him  to  his  Highness 
Oliver  Cromwell,  the  enlightened  author  shows,  on  several 
occasions,  his  belief  that  Machiavel  was  the  friend  of  the 
people. ||  The  same  opinion  is  entertained  by  the  learned 
Wicquefort,  who,  conscious  of  the  prejudice  against  Ma- 
chiavel in  the  minds  of  some,  especially  in  catholic  coun- 
tries, remarks  that  'people  will,  perhaps,  be  scandalized 
when  I  say  that  all  the  works  of  Nicholas  Machiavel  may 
be  of  mighty  use  to  the  ambassador.  I  do  not  pretend 
to  apologize  for  the  Florentine  politician,  for  I  must  own 
there  are  some  passages  in  him  that  are  not  very  orthodox: 

*  Harr.  works,  xxx. 

f  De  Legat.  lib.  3,  cap.  9;   Fame.  Mach.  vol.  1,  482,  490. 

|  1  Shaws'  Bacon,  191. 

§  'Verum  tractatio  hujus  de  quo  loquimur  argumenti,  gravis  et  prudens, 
atque  cum  intcgritate  quadam  et  sinceritate  conjuncta,  inter  munitissima 
virtutis  ac  probitatis  propugnacula  videtur  enumeranda.' 

'Est  itaque  quod  gratias  agamus  Machiavello  et  hujusmodi  scriptoribus, 
qui  apcrte  et  indissimulanter  proferunt  quid  homines  facere  soleant,  non 
quod  debeant.' — De  Aug.  Sci.  lib.  7,  ch.  2.  7  vol.  Bac.  works,  361. 

||   Harl.  Mis.  vol.  9,  290  &c. 


Lecl.  FX.]  OF    THE    FORMS    OF    GOVERNMENT.  419 

but  then  I  shall  not  scruple  to  maintain  that  there  are  some 
which  are  capable  of  a  much  more  favourable  explication 
than  what  is  commonly  given  them  by  pedants.  We  must 
suppose  him,  almost  every  where,  to  say  what  princes  do, 
and  not  what  they  ought  to  do;  and  if  he  sometimes  min- 
gles maxims  that  seem  inconsistent  with  the  rules  of  the 
christian  religion,  it  is  to  show  the  practice  of  usurpers 
and  tyrants,  and  not  how  lawful  princes  ought  to  behave 
themselves.'*  In  the  Harleian  Miscellany  we  also  find 
an  essay  entitled  'Vindication  of  that  Hero  of  Political 
Learning,  Nicholas  Machiavel.'  It  is  written  by  one 
James  Boevy,  and  bears  date  1692.  The  author  remarks, 
among  other  things,  as  follows.  'Nicholas  Machiavel  is 
cried  down  a  villain,  though  many  think  he  deserves  a  bet- 
ter title.' — 'One  who  intends  to  express  a  dishonest  man, 
calls  him  a  Machiavelian.' — 'If  any  can  pretend  a  just 
quarrel  with  Machiavel,  they  are  kings.' — 'If  the  lives  of 
Lewis  XI.  or  XIV.  were  examined,  it  would  be  found 
they  acted  more  ill  than  Machiavel  wrote,  or,  for  aught 
is  known,  ever  thought:  yet  the  first  has  had  wisdom 
inscribed  on  his  tomb,  and  the  last  is  cried  up  for  a 
great  statesman.' — 'Machiavel  having  to  make  a  gramm.v: 
for  the  understanding  of  tyrannical  government,  is  not  to 
be  blamed  for  setting  down  the  general  rules  in  it.' — 'He 
was  of  an  honourable  family,  born  at  Florence,  and  the 
writer  hereof  being  at  Florence  about  the  year  1642,  made 
what  inquiry  he  could  after  his  reputation,  and  found  that 
he  left  a  good  name  behind  him,  as  a  pious,  charitable,  sin- 
cere, good  man  as  any  in  that  city.'t  The  opinion  of 
Rousseau  on  this  point  is  entitled  to  great  respect.  He 
remarks  that  'Machiavel,  under  the  pretence  of  instructing 
sovereigns,  gives  important  lessons  to  the  people.  His 
Prince  is  the  manual  of  republicans.     His  connexion  with 

•  Ambassador,  book  I,  chap.  7,  page  53. 
1Harl.  Miscel.  vol.  10,183. 


420  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX- 

the  house  of  Medici  obliged  him,  during  the  oppression 
of  his  country,  to  conceal  his  love  of  liberty.  The  choice 
of  his  execrable  hero  sufficiently  evinces  his  secret  design; 
and  the  opposition  of  the  maxims  in  his  Discourses  on 
Livy,  and  in  his  History  of  Florence,  to  those  in  his 
Prince,  proves  that  this  profound  politician  has  hitherto 
had  only  superficial  or  corrupt  readers.  The  court  of 
Rome  has  strictly  proscribed  his  works;  yes,  indeed,  be- 
cause it  is  described  in  them  too  truly.'*  Boccalini,  though 
a  firm  catholic,  has  taken  side  with  the  friends  of  the  great 
Florentine,  and  boldly  says  that  he  has  copied  his  politics 
from  the  administration  and  actual  practices  of  many 
popes.  In  vindicating  Machiavel,  he  supposes  him  before 
the  tribunal  of  Apollo,  and  puts  into  his  mouth  a  speech 
replete  with  satirical  severity,  calling  on  the  tribunal  to 
allow  him  the  privilege  of  mentioning  the  names  of 
princes  from  whose  common  practice  he  had  but  deduced 
all  the  maxims  and  political  rules  set  forth  in  his  work; 
and  pledging  himself  to  a  cheerful  submission  to  any  pun- 
ishment, if  it  should  then  appear  that  his  condemned  pre- 
cepts are  new,  and  of  his  own  coining.  That  it  is  against 
reason  and  justice  that  the  inventors  of  these  diabolical 
practices  should  be  esteemed  holy  and  venerable,  when  he, 
who  hath  merely  divulged  them,  is  condemned  as  infa- 
mous. That  if  the  original  is  sacred,  the  mere  copy  can- 
not be  worthy  of  the  flames,  and  finally,  that  if  he  is  to 
be  persecuted,  then  must  the  reading  of  all  history  be  for- 
bidden, as  that  must  surely  convert  readers  into  so  many 
Machiavels,  especially  if  it  be  studied  by  them  as  poli- 
ticians. 

To  the  foregoing  opinions,  of  high  authority,  favourable 
to  the  reputation  of  Machiavel,  we  shall  add  that -of  a  very 
sensible  writer  of  our  own  country,  who  thus  eloquently 

*  Rousseau's  Social  Contract,  book  3,  chap.  6,  page  206,  and  note. 


Lect.  l\.\  OF    THE    FORMS    OF    GOVERNMENT.  421 

vindicates  the  fame  of  this  author,  whose  writings  he  is 
reviewing.     'Is  it  credible  that  one  who  had  made  it  the 
labour  of  his  life,  and  no  idle  life,  to  support  a  republic; 
who  had  connected  with  that  form  of  government  his  for- 
tune and  his  reputation;  who  had  fallen  with  it,  and  had 
hazarded  his  life  for  its  reestablishment;  should,  without 
any  apparent  aim  of  interest  or  ambition,  become  the  open 
advocate  of  tyranny;  and  that,  after  this,  he  should  still  be 
courted  by  the  friends  of  liberty  as  an  associate  and  a  con- 
fidant, and  still  persecuted  by  its  adversaries  as  an  enemy? 
-Is  it  credible  that  a  man  who  was  forming  a  complete  and 
elegant  representation  of  the  peculiar  excellencies  of  po- 
pular government,  which  he  might  expect  to  endure  as  a 
lasting  memorial  of  his  genius,  should  at  the  same  time, 
without  a  hope  or  a  motive,  unravel  by  night  the  beautiful 
tissue  that  he  was  weaving  by  day?     Is  it  credible   that 
one  whose  talents,  and  political  sagacity,  and  knowledge  of 
human  nature  are  universally  admired,  should  compose  in 
favour  of  despotism,  a  treatise  which  has  in  fact  been  more 
injurious  to  it  than  any  other  work  ever  written?     Is  it 
credible  that  the  same  individual  should  commit  all  these 
absurdities  in  times  of  civil  discord,  and  yet  not  even  the 
watchfulness  of  party  spirit  once  accuse  him  of  inconsis- 
tency?    But  if  we  suppose  that  it  was  the  object  of  Ma- 
chiavel   to  make  such  a  description  of  tyranny  as  should 
excite  resistance  rather  than  submission,  the  riddle  of  his 
life  is  solved;    his  writings,  his  conduct,  the  conduct  of  his 
friends,  and  that  of  his  enemies,  are  all  consistent  and  in- 
telligible.'* 

We  doubt  not  that  enough  has  been  said  to  redeem  the 
fair  fame  of  this  eminent  political  writer.  We  are  entirely 
satisfied,  from  a  careful  examination  of  his  Prince,  and  his 
Discourses  on  Livy,  that  they  are  valuable  to  all  who  desire 

•North  American  Review,  Sep.  1817,  vol.  5,  363. 


422  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

to  become  acquainted  with  the  artifices  of  crafty  and  wick- 
ed politicians,  that  they  may  the  better  guard  their  liber- 
tics  against  their  insidious  plans.  They  are  valuable  to 
those  who  would  cherish  a  lively  jealousy  of  their  political 
rights,  and  know  from  history  the  human  heart,  when 
guided  by  the  lust  of  power,  or  unrestrained  by  constitu- 
tional barriers.  In  the  works  of  this  master  politician 
they  will  find  that  the  author,  in  instructing  his  New 
Prince,  intends  that  he  shall  be  guided  by  maxims  the  re- 
verse of  those  which  are  stated  and  illustrated;  and  that 
he  should  be  warned  by  Uie  examples  given  of  the  disas- 
trous fate  which  so  often  attended  despots.  That  this  is 
the  designed  and  actual  moral,  is  clearly  apparent  from  the 
destiny  of  his  heroes,  especially  the  infamous  Caesar  Bor- 
gia, whose  misfortunes  and  end  were  precisely  what  should 
always  be  the  fate  of  those  whose  lives  arc  marked  by  op- 
pression, perfidy  and  crime.  This  mode  of  instruction, 
though  novel,  is,  we  think,  peculiarly  happy.  It  speaks  of 
the  maxims  and  conduct  of  despotic  princes,  points  out  by 
precept  and  example  all  that  is  cruel  and  base  in  such 
rulers,  and,  with  the  gravity  of  true  irony,  recommends 
what  the  most  wicked  of  the  human  race  would  blush  to 
own  as  the  rule  of  their  conduct.  It  is  quite  possible, 
however,  that  this  work  may  prove  injurious  to  some 
minds;  and  we  confess  there  is  much  of  plain  good  sense 
in  the  reas  ining  of  Frederick,  in  his  'Examen  du  Prince,' 
and  especially  in  his  preface  to  that  work.  But  we  cannot 
help  thinking  he  has  gone  a  little  too  far  in  his  augury  as 
to  the  certainty  of  its  pernicious  effects,  and  can  by  no 
means  agree  with  him  in  his  unqualified  condemnation  of 
the  motives  of  its  author.  All,  however,  must  admit  that 
if  the  Prince  be  regarded  in  a  serious,  and  not  a  satirical 
light;  if  it  be  really  what,  on  its  outward  face,  it  appears 
to  be;  it  is,  beyond  question,  the  basest,  the  most  unblush- 
ing, and  the  most  diabolical  production  which  ever  came 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  423 

from  the  pen  of  man.  On  the  other  hand,  the  work  once 
established  as  merely  satirical,  the  gravity  of  the  irony  can 
no  longer  be  the  source  of  mistake  or  mischief,  but  must 
heighten  the  intended  effect.  We  should  not  have  dwelt 
thus  pertinaciously  on  such  a  point,  had  we  not  felt  at 
heart  that  the  reputation  of  an  author  of  genius  and  worth 
should  never  be  a  matter  of  indifference;  that  every  one 
has  an  interest  in  it,  whether  he  be  author,  or  reader  only. 
And  as  those  are  the  greatest  benefactors  or  curses  to 
humanity,  whose  writings,  when  dictated  by  genius,  shall 
be  found  to  be  guided  either  by  the  spirit  of  good,  or  by 
the  spirit  of  evil,  it  is  but  common  justice,  if  prejudice  or 
errour  has  sullied  the  reputation  of  the  former,  to  remove 
the  blot,  though  it  has  subsisted  for  centuries.  The  obliga- 
tion is  incalculably  heightened,  when  the  writings  are  those 
of  Machiavel.  I  need  no  further  apology  for  having  dwelt 
so  long  on  this  topic. 

Let  us  now  take  a  brief  notice  of  his  works,  and  his 
leading  doctrines  as  to  the  forms  of  government,  and  the 
political  state.  His  writings  are  1.  The  History  of  Florence, 
in  eight  books.  2.  The  Prince.  3.  The  Life  of  Castruc- 
cio  Castracani,  of  Lucca.  4.  A  Narrative  of  the  methods 
taken  by  Csesar  Borgia  to  despatch  Vitellozzo  Vitelli,  Oli- 
verotto  da  Fermo,  Paolo  Ursini,  and  the  Duke  of  Gravina. 
5.  A  Sketch  of  the  Affairs  and  Constitution  of  France.  6. 
A  sketch  of  the  Affairs  and  Constitution  of  Germany.  7. 
Political  Discourses  upon  the  first  Decade  of  Livy.  8. 
The  Art  of  War.  9.  A  Discourse  upon  the  means  of  re- 
forming the  Government  of  Florence.  10.  Letters  on 
Matters  of  State.  The  whole  of  these  have  been  trans- 
lated into  nearly  all  the  languages  of  Europe.  Fame- 
worth's  English  translation  is  in  two  quarto  volumes,  and 
is  accompanied  by  a  translation  of  the  King  of  Prussia's 
'Examen   du  Prince,'  together   with   copious  notes,  pre- 


424  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

faces  &c.  illustrative  of  all  that  has  been  written  by  Ma- 
chiavel. 

In  regard  to  his  division  of  the  forms  of  government, 
and  his  doctrines  in  political  philosophy,  we  shall  be  very 
brief,  as  they  are  spread  over  too  extensive  a  surface  to  ad- 
mit of  even  a  concise  analysis.  His  views  of  government 
will  be  found  in  his  two  great  works,  the  Prince,  and  the 
Discourses  on  Livy.  In  the  former  he  treats  of  Princi- 
palities; in  the  latter,  of  Republics;  which  two  forms  are 
the  simple  and  only  divisions  which  he  has  made.  Prin- 
cipalities are  treated  by  him  under  two  cardinal  divisions; 
viz.  first,  Hereditary  in  a  family  which  has  long  possessed 
them;  secondly,  Newly  Acquired,  which  may  be  wholly  and 
absolutely  new,  or  annexed  as  appendages  to  the  dominions 
of  the  prince  who  acquires  them.  The  object  of  'The 
Prince'  is  to  speak  of  each  of  these  Principalities,  in  all 
their  divisions  and  subdivisions;  and  to  point  out  the  means 
of  sustaining  them,  or  rather  the  modes  in  which  they  have 
usually  in  fact  been  acquired  and  maintained.  The  chief 
design,  however,  is  to  instruct  those  who  have  newly  ac- 
quired dominions,  either  by  usurpation  or  by  conquest. 

The  maxims  and  examples  set  forth  as  the  rule  of  con- 
duct of  a  New  Prince,  are  such  as  only  fiends  could  dare  to 
recommend  to  beings  of  a  like  nature.  They  inculcate, 
without  the  least  disguise,  a  craft  the  most  refined,  a  perfidy 
and  oppression  without  any  limitation  but  that  of  policy. 
A  few  of  these  maxims  for  princely  instruction,  which 
we  shall  state  in  substance,  will  unfold  the  character  of  a 
work  either  unparalleled  in  wickedness  and  effrontery, 
or  unequalled  in  keen  satire. 

1.  One  should  either  keep  upon  good  terms  with  others, 
or  crush  them  utterly,  when  once  provoked;  for  if  the 
injury  that  you  do  them  be  slight,  you  leave  them  in  a 
capacity  to  return  it;  but  if  it  be  done  to  the  purpose. 
their  power  to  harm  you  is  gone.      So  that,  when  a  man 


Lect.  IX.]  OP    THE    FORMS    OF    GOVERNMENT.  425 

resolves  to  injure  another,  he  should  do  it  in  such  a  man- 
ner as  cuts  off  all  possibility  of  retaliation. 

2.  A  prince  who  contributes  to  the  advancement  of  ano- 
ther, is  the  cause  of  his  own  diminution;  for  he  who  has 
been  thus  advanced,  will  ever  grow  jealous,  and  at  last  sus- 
picious of  that  power  to  which  he  owes  his  exaltation. 

3.  The  new  prince  ought  to  extinguish  the  whole  fa- 
mily of  him  who  reigned  before  the  acquisition. 

4.  A  conqueror  should  establish  his  residence  in  his 
new  dominions,  if  he  would  make  his  possession  secure; 
or  he  should  establish  several  colonies  in  his  new  domi- 
nions, if  they  be  not  annexed  to  the  old  one. 

5.  A  prince  should  gain  the  confidence  of  the  neigh- 
bouring petty  states;  protect  them  against  one  another; 
then  sow  discord  among  them,  so  that  he  may  be  enabled 
to  exalt  or  depress  which  of  them  he  pleases. 

6.  Newly  conquered  states,  who  formerly  enjoyed  liber- 
ty and  their  own  laws,  can  be  secured  only  in  three  ways: 
first,  by  destroying  or  ruining  them;  secondly,  by  their  new 
master  residing  in  person  among  them;  and  thirdly,  by 
letting  them  enjoy  their  former  laws,  but  upon  condition 
of  their  paying  tribute,  and  having  a  council  of  their  own 
citizens  (appointed  by  the  prince)  who  shall  be  responsible 
for  all  that  is  due  to  him. 

7.  Men  are  fickle  and  inconstant.  It  is  therefore  ne- 
cessary to  be  in  a  condition  to  make  them  believe  by  force, 
when  they  will  no  longer  believe  of  themselves. 

8.  Whoever  imagines  that  the  merit  of  new  obligations 
will  extinguish  the  resentment  of  former  injuries  and  dis- 
gusts among  great  men,  will  find  himself,  at  last,  egre- 
giously  mistaken. 

9.  Whoever  would  secure  himself  in  a  new  principality, 
against  the  attempts  of  enemies,  and  finds  it  necessary  to 
gain  friends,  to  surmount  obstacles  either  by  force  or  fraud, 
to  make  himself  beloved  and  feared  by  his  people,  respect- 

54 


426  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

ed  and  obeyed  by  the  soldiery,  to  extinguish  all  such  as 
can,  or  may  oppose  his  designs,  to  abolish  old  laws  and  cus- 
toms, to  introduce  new  ones  in  their  room,  to  be  severe, 
grateful,  liberal  and  magnanimous,  to  disband  an  army 
which  he  cannot  trust,  and  such  like;  he  cannot  have  a  bet- 
ter model  than  the  Duke  Valentine. 

10.  The  prince  should  give  himself  wholly  up  to  war- 
like occupations,  more  assiduously,  too,  in  time  of  peace 
than  in  war.  This  should  be  done  by  continually  employ- 
ing his  bodily  and  intellectual  faculties.  He  should  ac- 
custom himself  to  hunting,  and  to  minutely  exploring  the 
country;  and  he  should  enlarge  his  mind  by  a  careful 
study  of  history,  and,  above  all,  should  ever'  have  before 
his  eye,  as  a  model  for  imitation,  some  renowned  ge- 
neral. 

11.  It  is  absolutely  necessary  for  a  prince  who  would 
support  himself,  to  learn  not  to  be  good  sometimes,  and 
to  make  use  of  that  knowledge  upon  occasion,  and  as  the 
exigency  of  his  affairs  may  require. 

12.  If  it  is  not  possible  for  a  prince  to  avoid  those  vices 
which  are  called  infamous,  it  is  not  worth  his  while  to  trou- 
ble his  head  about  it,  nor  to  embarrass  himself  in  endea- 
vouring to  escape  the  scandal  of  those  vices,  without  which 
he  could  not  support  his  state. 

13.  Is  it  better  for  a  prince  to  be  loved,  or  feared?  One 
would  desire  to  be  both;  but  since  that  is  difficult  to  be 
accomplished,  it  is  safer  to  be  feared. 

14.  If  a  prince  be  at  the  head  of  a  numerous  army,  he 
must  make  little  account  of  being  thought  cruel:  for  if  he 
has  not  that  character  among  his  soldiers,  they  will  never 
be  kept  in  due  order,  nor  be  fit  to  be  led  to  any  enter- 
prise. 

15.  A  prince  ought  to  know  how  to  resemble  a  beast  as 
well  as  a  man,  upon  occasion. 


Lect.  lX.'j  OF    THE    FORMS    OF    GOVERNMENT.  427 

16.  It  is  not  necessary  for  him  to  be  actually  possessed  of 
all  the  good  qualities  before  mentioned;  but  highly  so,  that 
he  should  have  the  appearance  of  them. 

17.  All  men  are  wicked  and  faithless,  and  will  not  keep 
their  engagements  with  you.  You,  therefore,  are  not 
obliged  to  keep  yours  with  them. 

18.  Those  who  know  how  to  dissemble,  will  always  find 
simple  people  to  practise  upon. 

These  maxims  might  be  greatly  increased,  but  they  are 
sufficient  to  show  the  keen  and  deep  satire  of  the  work;  a 
conclusion  which  a  careful  perusal  of  the  entire  work  will 
be  apt  to  confirm. 

Machiavel  not  only  well  knew  the  infamy  of  Borgia's 
character,  but  was  acquainted  with  his  disastrous  end,  long 
before  the  'Prince'  was  written.  He  had  previously  de- 
clared his  unfavourable  opinion  of  that  menster;  and  in 
various  parts  of  the  work  under  examination,  he  mentions 
his  acts,  and  states  him  to  be  a  model,  in  terms  which  can- 
not be  misunderstood;  they  are  manifestly  ironical.  We 
think  the  weight  of  authority,  also,  is  on  the  side  we 
have  espoused.  And  as  to  the  singular  notion  of  Stewart 
and  Sismondi,  that  the  'Prince'  was  written  without  any 
fixed  design,  but  through  melancholy,  there  are  no  inter- 
nal or  external  evidences  of  that  fact. 

Having,  we  fear,  dwelt  too  long  on  our  remarks  on 
Machiavel,  we  proceed  to  speak, 

2dly.  Of  Harrington.  This  eminent  political  writer 
was  born  in  the  year  1611.  During  the  differences  be- 
tween Charles  and  his  parliament,  Harrington  had  to  strug- 
gle between  his  affection  for  the  king,  who  had  been  uni- 
formly kind  to  him,  and  his  republican  principles,  which 
inclined  him  to  the  parliament.  He  took,  however,  no 
active  part  in  the  civil  wars,  and  after  Charles's  misfor- 
tunes, his  commiseration  for  his  fate  was  such  as  to  occa- 
sion his  dismissal  from  office.     He  was  too  honest,  too  sen- 


428  ok    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

sible,  and  knew  too  well  the  nature  of  political  and  civil 
liberty,  to  repose  much  confidence  in  Cromwell.  During 
the  Protectorate  he  retired,  for  a  time,  from  public  view, 
and  engaged  himself  in  the  composition  of  the  Oceana,  a 
work  on  which  his  fame  has  chiefly  reposed.  Though  no 
friend  to  Cromwell,  he  was  a  zealous  advocate  of  ra- 
tional liberty;  and  for  the  propagation  of  his  republi- 
can principles,  he  instituted  the  famous  debating  society 
called  the  Rota,  which  met  every  night  to  discuss  ques- 
tions, with  the  view  chiefly  of  trying  the  public  feeling  on 
various  political  points,  at  that  time  of  great  moment.  'In 
this  society/  says  Anthony  Wood,  'their  discourses  about 
government,  and  of  ordering  a  commonwealth,  were  the 
most  ingenious  and  smart  that  ever  were  heard;  for  the  ar- 
guments in  parliament  were  flat  to  those.  They  had  a  bal- 
loting box,  and  thus  voted  how  things  should  be  carried, 
by  way  of  essay,  which  not  being  used  or  known  in  Eng- 
land before  this,  the  room  was  every  night  very  full.'* 

A  favourite  doctrine  of  this  society  was  rotation  in  of- 
fice, effected  by  ballot,  which,  though  it  was  popular,  the 
parliament  was  generally  unfriendly  to.  One  of  the  mem- 
bers of  the  Rota  proposed  this  to  the  house,  and  argued  that 
unless  parliament  should  embrace  that  species  of  govern- 
ment, it  must  be  ruined.  Wood  says  that  'the  model  of 
it  was,  that  the  third  part  of  the  house  should  vote  out,  by 
ballot,  every  year,  and  not  be  capable  of  reelection  for 
three  years;  so  that  every  ninth  year  the  parliament  would 
be  wholly  altered.  No  magistrate,  also,  was  to  continue 
above  three  years,  and  all  were  to  be  chosen  by  ballot; 
than  which  nothing  could  be  invented  more  fair,  as  it  was 
then  thought,  though  opposed  by  many  for  several  reasons. 
This  club  of  commonwealth's-men  lasted  until  February, 
1659,  at  which  time  the  secluded  members  being  restored 
by  General  Monk,  all  their  models  vanished."!"' 

*  Harr.  Works,  25.  f  Ibid,  26. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  429 

At  the  Restoration,  Harrington  entirely  secluded  him- 
self. He  was,  however,  brought  from  his  retirement  and 
studies  in  1661,  and  committed  to  the  Tower  on  a  charge  of 
treasonable  practices.  His  defence,  though  triumphant,  was 
not  followed  by  restoration  to  liberty ;  his  imprisonment  was 
long  and  severe;  which,  added  to  ill  health,  and  the  igno- 
rant prescriptions  of  his  physician,  occasioned  mental  de- 
rangement, which  terminated  in  death,  a  very  short  time 
after  his  release. 

All  of  Harrington's  works  are  political,  and  treat  large- 
ly of  the  forms  of  government,  and  the  philosophy  of  the 
political  state.  Those  of  his  productions  which  have  at- 
tracted most  notice,  after  his  Oceana,  are  the  following: 

1.  'The  Art  of  Governing.'  It  is  divided  into  three 
books.  The  author  treats,  in  the  first  book,  of  the  founda- 
tions and  superstructures  of  every  known  species  ©f  govern- 
ment; of  the  origin  of  property,  whence  arises  empire; 
how  the  balance  of  empire  is  created  and  regulated;  of  the 
generation  of  popular  government,  and  of  governments 
against  the  balance,  as  tyranny,  oligarchy,  ochlocracy. 
He  then  speaks  of  empire,  as  the  result  of  an  over-balance 
of  property,  and  shows  how  the  form  of  government  is 
produced  by  the  proportion  which  this  over-balance  of  pro- 
perty bears  to  that  which  remains  in  the  hands  of  the  go- 
verned. He  holds  that  if  one  man  against  the  people,  has 
the  balance  of  land  in  his  favour,  three  to  one,  he  becomes 
an  absolute  monarch.  If  this  over-balance  be  in  a  few,  or 
in  one  and  a  few,  an  aristocracy,  or  a  regulated  monarchy 
will  be  generated;  and  if  the  people  have  this  preponder- 
ance of  property,  or  if  neither  one  nor  a  few  have  it,  this 
will  give  rise  to  a  popular  form  of  government.  The  learn- 
ed author  then  proceeds  to  consider  the  variations  of  this 
balance  in  England,  from  its  earliest  history  to  his  own  day, 
and  the  fixation  of  this  balance,  that  is  of  the  Agrarian  sys- 
tem.    This  book  is  concluded  with  an  account  of  the  po- 


430  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

licy  and  fundamental  principles  of  many  of  the  govern- 
ments that  have  existed. 

In  the  second  book  of  this  treatise,  Harrington  speaks 
of  the  commonwealth  of  Israel,  and  shows  that  this  species 
of  government  was  known  prior  to  that  of  Israel.  In  the 
last  book,  he  gives  the  theory  or  outline  of  a  popular  go- 
vernment, and  considers  the  civil,  religious,  military  and 
provincial  branches  of  a  supposed  popular  government. 

2.  'The  Prerogative  of  Popular  Government'  is  his 
next  treatise  worthy  our  notice.  This  is  divided  into  two 
books.  The  first  consists  of  a  reply  to  certain  objections 
which  had  been  made  to  his  Oceana.  These  he  considers 
under  twelve  heads.      The  topicks  are  as  follows: 

1.  Whether  the  art  and  the  forms  of  government,  which 
he  calls  Prudence,  be  rightly  distinguished  into  ancient 
and  modern. 

2.  Whether  a  commonwealth  be  correctly  defined  to  be 
a  government  of  laws,  and  not  of  men;  and  monarchy  a 
government  of  some  man,  or  a  few  men,  and  not  of  laws. 

3.  Whether  the  balance  of  property  in  land  be  the  na- 
tural cause  of  empire. 

4.  Whether  the  balance  of  empire  be  correctly  divided 
into  national  and  provincial. 

5.  Whether  men  have  a  common  right  or  interest,  dis- 
tinct from  the  parts  taken  severally,  and  how,  under  go- 
vernments, this  may  be  distinguished  from  private  interest. 

6.  Whether  the  Senatus  Consulta,  or  Decrees  of  the 
Roman  senate,  had  the  force  of  laws. 

7.  Whether  the  Mosaic  law  were  obligatory  merely 
from  the  command  of  God,  or  became  so  by  the  consent 
or  vote  of  the  people  of  Israel.  That  God  was  the  Chi- 
rotonized,  or  chosen  ruler  of  the  people.  That  Chiroto- 
nia  is  an  election  by  the  suffrage  of  the  many,  and  Chiro- 
thesia  a  similar  choice  by  a  few;  and  that  the  Chirotonia 
among  the  Jews,  was  changed  to  the  Chirothesia. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  431 

8.  Whether  a  perfect  commonwealth  be  not  a  perfect 
form  of  government.  He  defines  such  a  government  to  be 
one  established  upon  an  equal  agrarian;  and  arising  into 
three  orders,  viz.  the  senate  debating  and  proposing;  the 
people  resolving;  and  the  magistracy  executing;  accompa- 
nied with  a  rotation,  through  the  Chirotonia,  or  suffrage 
of  the  people  given  by  ballot. 

9.  Whether  a  monarchy,  perfect  in  its  kind,  does  not 
fall  short  of  a  perfect  polity.  On  this  point,  he  contends 
that  there  are  only  two  kinds  of  monarchy,  one  by  arms, 
the  other  by  a  nobility:  that  the  inherent  infirmity  of  the 
former  is,  that  those  in  arms,  whom  he  calls  the  Janizaries, 
will  have  frequent  interest,  and  perpetual  power,  to  raise 
seditions,  and  destroy  the  magistracy:  and  that  the  like  in- 
herent vice  of  a  nobility  is,  that  they  possess  the  frequent 
intejrest,  and  perpetual  ability,  by  their  retainers  and  te- 
nants, to  excite  seditions,  and  levy  wars.  Whence  he 
concludes  that  monarchy,  reaching  even  its  utmost  perfec- 
tion, is  not  a  perfect  form,  but  that  it  must  ever  have  dan- 
gerous flaws  in  it. 

10.  Whether  a  commonwealth  has  ever  been  conquered 
by  the  arms  of  any  monarch,  except  where  the  people 
have  proved  faithless  to  themselves.  This  question  he 
resolves  with  much  confidence,  and  an  equal  display  of 
learning,  and  concludes  that  a  commonwealth  is  a  govern- 
ment which,  from  the  beginning  of  the  world  to  the  pre- 
sent day,  hath  never  been  conquered  by  any  monarch:  for, 
says  he,  if  the  commonwealths  of  Greece  came  under  the 
yoke  of  the  kings  of  Macedon,  they  were  first  broken  by 
themselves. 

11.  Whether  an  agrarian  law,  or  some  one  of  that  na- 
ture, be  not  essential  in  every  commonwealth;  and  whether 
this  law,  as  set  forth  in  Oceana,  is  not  equal  and  satisfactory 
to  every  interest  in  the  state.  On  this  subject  he  displays 
much   learning   and   ingenuity,    and  would   be  read  with 


432  OP    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

pleasure  and  advantage,  did  he  not  convey  them  in  a  style 
worse  than  any  that  can  well  be  conceived. 

12.  And  lastly,  whether  rotation  in  office  be  essential  to 
a  well  regulated  commonwealth.  In  this  inquiry,  the  go- 
vernments of  Israel,  Athens  and  Venice  are  examined  by 
him  with  great  minuteness;  and,  as  he  conceives,  they  jus- 
tify the  principle  of  rotation,  as  it  is  established  in  Oceana. 

The  second  book  of  this  work  is  divided  into  five  chap- 
ters, the  subjects  of  which  are  rather  curious  than  practi- 
cal. He  institutes  a  learned  research  into  the  true  import 
of  Chirotonia  and  Chirot/iesia,  and  shows  how  the  former 
is  deduced  from  popular  government,  and  the  latter  from 
monarchy  and  aristocracy;  and  that  most  of  the  cities  of 
Asia  Minor  were  under  a  popular  form  of  government. 

3d.  'Valerius  and  Publicola'  is  another  work  of  this 
writer,  to  which  we  desire  briefly  to  advert.  This  js  a 
somewhat  spirited  dialogue  on  the  true  form  of- a  popu- 
lar government.  Harrington's  most  favourite  doctrines, 
found  in  his  other  works,  are  here  brought  into  review. 
The  style  is  more  easy  than  in  the  productions  we  have 
noted,  and  the  dialogue  is,  we  think,  decidedly  more  in- 
structive than  many  to  be  found  in  the  works  of  the  Divine 
Plato. 

4th.  'Aphorisms.'  These  are  among  the  most  valuable 
of  his  works:  they  contain,  in  short  and  well  expressed 
sentences,  the  substance  of  nearly  all  that  he  has  written. 
They  are  embraced  in  two  treatises;  one  under  the  name 
of  'A  System  of  Politicks  delineated  in  Short  and  Easy 
Aphorisms;'  the  other  under  the  simple  title  of  'Political 
Aphorisms.' 

There  are  two  other  works  of  this  distinguished  friend 
of  liberty,  which  we  shall  merely  name,  though  they  have 
considerable  merit.  We  allude  to  his  'Seven  Models  of  a 
Commonwealth,'  and  the  'Rota,  or  a  Model  of  a  Free 
State.' 


Lect.  1X.J  OF    THE    FORMS    OF    &OVERNMEN'i'.  43.1 

I  fear  that  I  have  trespassed  too  long  on  the  patience 
of  the  class,  without  having  accomplished  my  main  de- 
sign, which  is  to  speak  with  some  minuteness  of  his  most 
celebrated  treatise,  to  which  I  now  proceed. 

5th.  'The  Commonwealth  of  Oceana.'  This  is  a  spe- 
cies of  poliiical  romance,  in  imitation  of  Plato's  Critias, 
or  Atlanticus.  It  exhibits  an  ideal  republic,  somewhat  af- 
ter the  manner  of  the  imaginary  republics  of  Hippodamus, 
of  Plato,  and  of  others  among  the  ancients;  and  of  the 
Utopia  of  Sir  Thomas  More. 

We  propose  to  give  a  brief  analysis  of  the  entire  work, 
stating  its  leading  doctrines,  so  that  the  industrious  student 
may  have  a  foretaste  of  a  production  of  which  every  scholar 
in  political  science,  especially  in  this  country,  should  be 
ashamed  to  confess  himself  ignorant.  It  must  be  admit- 
ted, however,  that  an  outline  of  it  may  prove  necessary, 
as  its  style  and  arrangement  are  uninviting,  and  some 
of  its  topics  ill  suited  to  the  taste  of  the  present  day. 
Oceana  is  divided  into  four  parts,  viz. 

1.  'The  Preliminary.'  This  is  itself  divided  into  two 
parts.  These  preliminary  discourses  state  the  principles, 
origin  and  operation  of  every  species  of  known  govern- 
ment, be  it  simple  or  mixed,  pure  or  corrupt. 

The  'First  Preliminary'  treats  more  particularly  of  those 
forms  of  polity  which  existed  prior  to  the  establishment  of 
the  Roman  empire.  The  origin  of  empire,  as  it  flows 
from  the  preponderance  of  landed  property,  whether  in 
particular  orders,  or  parts  of  a  community;  the  operation 
of  the  Licinian  or  Agrarian  laws;  the  election  to  office  by 
the  ballot  of  the  people;  the  principle  of  rotation  in  office; 
and  the  comparative  merits  and  defects  of  the  various 
schemes  of  polity;  are  all  treated  with  great  learning,  and 
with  more  perspicuity  than  usually  belongs  to  the  produc- 
tions of  this  writer. 


5.5 


434  OF    THE     FORMS    OF    GOVERNMENT.  [Lect.  IX. 

The  'Second  Preliminary'  speaks  of  the  principles  of 
modern  governments;  that  is,  of  those  which  arose  after 
the  fall  of  the  Roman  empire.  The  various  Gothic  con- 
stitutions are  then  examined,  and  the  government  of  Eng- 
land under  the  Romans,  Saxons,  Danes  and  Normans, 
down  to  the  decapitation  of  Charles  I.,  is  advantageously 
set  forth.  In  this  discourse  we  also  find  a  masterly  history 
of  the  origin  of  feuds,  and  of  the  feudal  tenures;  of  the 
distinctions  of  ranks,  and  the  several  kinds  of  nobility.  It 
concludes  with  displaying  the  causes  of  the  dissolution  of 
the  Norman  monarchy  under  the  first  Charles,  and  the 
generation  of  that  light  of  liberty  which,  ever  since  that 
memorable  revolution,  has  continued  to  shine  with  in- 
creasing lustre,  and  more  expansive  rays. 

2.  'The  Council  of  Legislators.  The  second  part  of 
Oceana  has  this  title.  In  this  division  of  the  treatise  we 
have  a  concise  account  of  the  mode  in  which  the  common- 
wealth of  Oceana  was  formed,  and  of  the  personages  to 
whom  the  reorganization  of  its  constitution  was  entrusted. 
We  are  informed  that  this  new  polity  was  the  result  of  the 
deliberations  of  nine  legislators,  who  are  introduced  to  us 
under  feigned  names.  They  are  stated  to  be  intimately 
acquainted  with  the  merits  and  defects  of  the  several  go- 
vernments which  they  are  sent  to  represent  in  the  Council. 
The  commonwealths  thus  represented  are  the  nine  follow- 
ing, viz.  1.  Israel,  2.  Athens,  3.  Sparta,  4.  Carthage,  5. 
Achaia,  ^Gtolia  and  Lycia,  6.  Rome,  7.  Venice,  8.  Swit- 
zerland, 9.  Holland.  This  council  of  august  legislators  is 
opened  by  one  who  is  called  Lord  Archon.  In  the  ora- 
tion spoken  by  him  on  that  occasion,  he  urges  the  necessity 
of  discarding  all  fancy  and  speculation  in  the  great  work 
in  which  they  were  then  to  be  engaged,  and  of  resorting  to 
the  archives  of  ancient  polities,  that  they  might  thence  ob- 
tain all  requisite  wisdom.  These  councillors  having  pre- 
pared seriatim  ct  scpuratim  their  views  of  the  several 


Lect.  IX.  |  OF    THE    FORMS    OF    GOVERNMENT.  435 

governments  assigned  to  them  for  consideration,  they  were 
all  read  to  the  people  by  a  committee  of  twelve  persons 
selected  by  lot,  which  committee  was  called  the  Council  of 
Prytans.  The  people  were  then  at  liberty  to  present  to 
the  Prytans  their  own  suggestions  on  the  views  thus  sub- 
mitted to  them.  The  council  of  Prytans  convened  in  the 
Pantheon,  whilst  the  Grand  Council  of  Legislators  sat  in  the 
palace  called  Alma.  The  Prytans  continued  in  session  du- 
ring several  months,  whilst  all  objections  against  the  mo- 
del of  the  new  government  were  argued  before  them. 
The  Council  of  Legislators  also  continued  in  session,  without 
any  disturbance  from  the  people,  the  Prytans  constantly 
informing  the  legislators  of  the  people's  views.  All  mat- 
ters of  interest  being  thus  commented  on,  first  by  the  peo- 
ple, then  by  the  Council  of  Prytans,  and  lastly  by  the  Legis- 
lative Council,  that  council,  after  much  deliberation,  ex- 
tracted from  the  entire  subject  what  they  deemed  excel- 
lent and  practical,  and  thus  was  formed  the  model  or  new 
constitution  of  the  commonwealth  of  Oceana,  a  polity  de- 
signed by  its  framers  to  be  immortal,  as  it  was  supposed  to 
be  as  perfect  as  human  means  could  effect,  from  the  com- 
bined wisdom  of  all  ancient  and  modern  prudence,  finish- 
ed and  embellished  by  the  cautious  reflections  of  the  several 
councils,  on  their  own,  and  the  people's  suggestions. 

3.  'The  Model  or  Constitution'  is  then  given,  and  is,  of 
course,  the  chief  object  of  the  work,  the  two  preceding 
parts  being  preliminary  information  as  to  forms  of  govern- 
ment previously  known,  and  as  to  the  mode  in  which  the 
constitution  of  Oceana  came  to  be  remodelled.  A  full 
analysis  of  this  constitution  would  lead  us  into  too  much 
detail:  all  that  we  shall  therefore  aim  at,  is  to  present  you 
with  such  an  outline  of  this  important  division  of  the  work, 
as  will  enable  you  to  understand  at  least  the  great  features  of 
the  government,  and  to  read  the  whole  treatise  with  more 


4.'36  OF    THE     FORMS    OF    GOVERNMENT.  [Lect.  IX. 

facility  and  pleasure  than  those  do  who  take  it  up  without 
any  previous  knowledge  of  its  plan. 

The  Constitution  consists  of  thirty  Articles,  which  are 
called  Orders,  to  each  of  which  is  appended  an  explanatory 
discourse,  and  occasionally  an  appropriate  speech,  de- 
livered either  by  the  supreme  legislator,  the  lord  Archon, 
under  the  name  of  Olphaus  Megnletor,  or  by  some  of  the 
other  members  of  the  council  of  legislators.  These  ora- 
tions are  generally  very  learned,  sometimes  eloquent,  and 
the  whole  form  a  continued  commentary  on  the  more  im- 
portant doctrines  of  the  constitution. 

These  articles  contain  a  system  of  government  which,  as 
we  said  before,  it  will  not  be  in  our  power  fully  to  unfold  to 
you,  as  every  order  contains  some  important  regulation  or 
principle.  The  people  are  divided  into  various  classes,  as 
into  Freemen,  Servants,  Elders,  Youth,  Horsemen,  Foot- 
men &c.  this  latter  class  being  formed  of  those  having  an 
annual  income  to  a  certain  amount.  The  people  are  further 
divided  in  reference  to  locality,  or  their  place  of  habita- 
tion, which  creates  Parishes,  Hundreds,  Tribes  &c.  &c. 
Those  who  have  been  legally  declared  Prodigals,  are  ex- 
cluded from  all  office,  and  also  from  the  right  of  suffrage. 
Provisions  are  then  made  for  the  mode  of  elections,  for  the 
establishment  of  a  national  religion,  and  full  liberty  of 
conscience;  for  the  raising  of  armies;  defence  by  militia; 
the  encouragement  and  regulation  of  trade;  the  maritime 
defence;  for  education  in  law,  physic,  divinity,  agricul- 
ture, polite  learning,  and,  generally,  for  instruction  in 
all  human  learning  and  wisdom.  Provisions  are  also  made 
for  the  regulation  and  purity  of  the  drama;  the  manage- 
ment of  all  civil  and  military  concerns;  the  salaries  and 
expenses  of  government;  the  well  ordering  of  state  pa- 
geantry; the  police  of  the  Emporium,  or  chief  city;  the 
mode  of  enacting  laws,  of  promulgating  and  enforcing 
them;  and  finally,  for  all  matters  which  relate  to  a  well  po- 


Lect.  IX.J  OP    THE    FORMS    OF    GOVERNMENT.  437 

liced  community.  Throughout  the  whole,  the  doctrine  is 
inculcated,  that  a  commonwealth  or  democratic  form  of 
government  does  by  no  means  exclude  degrees  or  distinc- 
tions of  rank,  and  that  a  nobility  and  gentry  are  perfectly 
consistent  with  the  purest  and  best  secured  liberty:  for, 
says  Harrington,  'an  army  may  as  well  consist  of  soldiers 
without  officers,  or  officers  without  soldiers,  as  a  common- 
wealth, especially  a  great  one,  consist  of  a  people  without 
a  gentry,  or  a  gentry  without  a  people-' 

We  have  already  mentioned  that  this  singular  production 
is  a  political  romanes.  The  author's  design  is  to  present  a 
form  of  government  for  his  own  country  England,  Ireland 
and  Scotland,  and  likewise  a  plan  of  police  for  the  regula- 
tion of  the  greal  emporium,  London  and  Westminster:  but 
the  whole  is  done  under  fictitious  names  of  persons  and 
places.  We  give  those  names,  as  they  will  be  found  to 
occur  frequently  in  the  work;  this  will  enable  the  student 
to  read  it  with  a  more  correct  idea  of  its  fictitious  plan. 
Adoxus,         ...  King  John. 

Alma,  St.  James'  Palace* 

Convallium,  -  Hampton  Court. 

Coraunus,  -         -         King  Henry  VIII. 

Dicotome,  ...      Richard  II. 

Emporium,       ...  London. 

Halcionea,  ...       The  Thames. 

Halo,  ....    White  Hall. 

Hemesica,  -  -         The  Trent. 

Hiera,  ...      The  City  of  Westminster. 

Leviathan,       ...  Thomas  Hobbes. 

Marpesia,  ...        Scotland. 

Morpheus,  -         -         -      James  I. 

Mount  Celia,  -         -  Windsor. 

Neustrians,         -         -         -       The  Normans. 

Olphaus  Megaletor,  Lord  >         0Hyer  Cromwell> 
Archon,  3 


438       OF  THE  FORMS  OF  GOVERNMENT.       [Le'ct.  IX. 

Panopcea,  -         -         -         Ireland. 

ieon,  -  Westminster  Hall. 

Panurgus,         -         -         -         Henry  VII. 
Parthenia,  -         -         -      Queen  Elizabeth. 

Scandians,       -         -         -  The  Danes. 

Teutons,  -         -         -       The  Saxons. 

Turbo,         ...         -     William  the  Conqueror. 
Verulamius,      -         -         -         Lord  Bacon. 

4.  The  last  division  of  the  work  is  called  'The  Corol- 
lary,' in  which  are  stated  the  general  salutary  consequences 
which  may  be  anticipated  from  the  adoption  of  the  new 
constitution.  These  are  described  as  highly  advantageous, 
and  picture  to  us  a  people  moral,  intelligent,  powerful, 
prosperous  and  happy: 

This  celebrated  work  had  enemies  to  contend  with,  even 
before  it  was  ushered  to  light;  and  when  given  to  the 
world,  many  exertions  were  made,  by  essays  and  other 
means,  to  bring  it  and  its  able  author  into  disrepute.  These 
however,  as  is  ever  the  case  with  works  of  great  merit, 
had  only  a  contrary  effect;  the  publick  were  forced  to  an 
acquaintance  with  its  sound  doctrines,  its  learning  and  in- 
genuity. 

When  the  book  was  in  the  press,  some  of  Cromwell's 
courtiers  seized  it,  and  resisted  all  his  importunities  for 
its  return.  The  disconsolate  author  then  applied  to  lady 
Claypole,  the  Protector's  favourite  daughter.  The  part 
which  Harrington  acted  on  this  occasion,  and  the  lady's 
deportment,  are  thus  stated  by  his  biographer. 

'Being  led  into  her  antichamber,  he  sent  in  his  name, 
with  his  humble  request  that  she  would  admit  him  to  her 
presence.  While  he  attended  in  the  anti-room,  some  of 
the  lady's  women  coming  in,  were  followed  by  her  little 
daughter,  about  three  years  old,  who  staid  with  him.  He 
entertained  the  child  so  divertingly,  that  she  suffered  him 
to  take  her  up  in  his  arms  till  her  mother  came;  where- 


Lect.  IX.J  OF    THE    FORMS    OF    GOVERNMENT.  133 

upon  he,  stepping  towards  her,  and  setting  the  child  down 
at  her  mother's  feet,  said,  madam,  'tis  well  you  are  come  at 
this  nick  of  time,  or  I  had  certainly  stolen  this  pretty  lit- 
tle lady.     Stolen  her!  replied  the  mother,  pray  what  to  do 
with  her?  She  is  too  young  to  be  your  mistress.     Madam, 
said  the  author,  though  her  charms  assure  her  of  a  more 
considerable  conquest,  yet  I  confess  it  is  not  love,  but  re- 
venge, that  prompted  me  to  commit  this  theft.     Lord!  an- 
swered the  lady  again,  what  injury  have  I  done  that  you 
should  steal  my  child?     None  at  all,  said  he,  but  that  you 
might  be  induced  to  prevail  with  your  father  to  do  me  jus- 
tice by  restoring  my  child,  that  he  hath  stolen.       But  she, 
urging  that  this  was  impossible,  as  her  father  had  children 
enough  of  his  own,  he  told  her  at  last  that  it  was  the  issue 
of  his  brain,  which  being  misrepresented  to  the  Protector, 
had  been  taken  out  of  the  press  by  his  order.     The  lady 
immediately  promised  to  procure  it  for  him,  if  it  contained 
nothing  prejudicial  to  her  father's  government;  and  he  as- 
sured her  it  was  only  a  kind  of  political  romance,  so  far 
from  any  treason   against  her  father,  that  he  hoped   she 
would  acquaint  him  that  he  designed  to  dedicate  the  work 
to  him,  and  promised  that  she  herself  should  be  presented 
with  one  of  the  first  copies.      The  lady  was  so  well  pleased 
with  his  manner  of  address,  that  she  had  his  book  speedily 
returned  to  him,  and  he  did  accordingly  inscribe  it  to  Oli- 
ver Cromwell,  who,  after  the  perusal  of  it,  said  the  gen- 
tleman had  like  to  trepan  him  out  of  his  power;  but  that 
what  he  had  gotten  by  the  sword,  he  would  not  quit  for  a 
little  paper  shot,  adding,  in  his  usual  cant,  that  he  approved 
the  government  of  a  single  person  as  little  as  any  of  them; 
but  that  he  was  forced   to  take   upon  him  the  office  of 
high  constable,  to  preserve  the  peace  among  the  several 
parties  in   the  nation,  since,  he  said,  being  left  to  them- 
selves,  they  would    never  agree    to   any  certain    form  of 
government,  and  would  only  spend  their  whole  power  in 


440  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

defeating  the  designs,  or  in  destroying  the  persons,  of  one 
another.'* 

Harrington's  'Oceana,'  and  his  'Political  Aphorisms' 
were  strongly  instrumental  in  laying  the  foundation  of  that 
fabric  of  liberty  which  has  been  partly  raised  in  England, 
and  which  has  been  nearly  completed,  and  will,  we  trust, 
be  embellished,  in  this  country.  We  know  of  no  writer,  an- 
cient or  modern,  who  was  a  more  able  or  zealous  champion 
of  the  political  and  civil  rights  of  man,  than  Harrington. 
His  works,  especially  those  just  mentioned,  should  there- 
fore be  attentively  read  by  American  lawyers  and  states- 
men. They  teem  with  those  salutary  doctrines  of  rational 
libert}r,  which  so  eminently  mark  the  genius  of  our  go- 
vernment. Very  many  subsequent  authors  and  politicians 
have  been  greatly  indebted  to  him,  without  any  direct  ac- 
knowledgment of  their  obligations.  We  shall  conclude 
our  remarks  on  this  political  writer,  with  citing  the  only 
notice  which  Mr  Hume  has  seen  fit  to  bestow  on  him. 
'Harrington's  Oceana,'  says  he,  'was  well  adapted  to  that 
age,  when  the  plans  of  imaginary  republics  were  the  daily 
subject  of  debate  and  conversation;  and  even  in  our  time, 
it  is  justly  admired  as  a  work  of  genius  and  invention. 
The  idea,  however,  of  a  perfect  and  immortal  common- 
wealth will  always  be  found  as  chimerical  as  that  of  a 
perfect  and  immortal  man.  The  style  of  this  author  wants 
ease  and  fluency;  but  the  good  matter  which  the  work 
contains,  makes  compensation. 't 

3d.  Of  Sidney.  Algernon  Sidney  was  of  the  popular 
party,  in  the  troubles  between  king  Charles  I.  and  his  par- 
liament. A  warm  friend  to  liberty,  though  untainted  with 
enthusiasm,  he  partook  of  the  republican  views  of  the  par- 
liament, and  from  his  hostility  to  Cromwell,  no  less  than 
to  the  exiled  family,  appears  to  have  been  an  honest  advo- 

*  Han.  Works,  16.  f  Hume's  Mist.  Eng.  vol.  6,  SrfS. 


Lect.  IX.  OF    THE    FORMS    OF    GOVERNMENT.  441 

cate  of  the  people's  rights,  and  of  that  form  of  polity 
which  was  best  adapted  to  secure  them.  He  is  said  to 
have  taken  Brutus  for  his  model;  yet  he  did  not  pusli  his 
imitation  so  far  as  to  sit  in  trial  among  the  judges  who  con- 
demned his  sovereign  to  the  scaffold.  Sidney  was  exe- 
cuted in  16S3,  for  his  concern  in  the  Rye-house  plot,  but 
on  grounds  so  illegal,  that  his  attainder  was  reversed  in  the 
reign  of  William  and  Mary.  One  ground  of  accusation 
against  him  was,  the  finding  in  his  closet  those  Discourses 
on  Government  which  now  rank  him  so  high  among  writers 
on  politics  and  legislation;  and  which  by  some  have  been 
thought  to  be  of  such  singular  merit  as  fully  to  compensate 
for  the  loss  of  the  six  books  of  Cicero  De  Republican 
These  Discourses,  in  less  factious  and  more  liberal  times, 
about  169S  and  1704,  were  given  to  the  world,  and  were 
at  one  time  much  read.  They  manifest  considerable  learn- 
ing, sound  judgment,  and  liberal  principles;  and  were  the 
style  more  agreeable,  they  would  be  still  read  with  much 
pleasure  and  advantage,  notwithstanding  subsequent  au- 
thors, profiting  much  by  these  discourses,  as  also  by  the 
works  of  Harrington,  Milton  and  others,  have  given  to 
the  world  productions  of  a  more  polished  form,  and  in 
which  have  also  been  displayed  those  vast  improvements 
in  political  science  which  mark  the  period  since  the  days 
of  Algernon  Sidney. 

Hume,  when  relating  the  trial  of  this  martyr  to  liberty, 
remarks  of  his  Discourses  on  Government,  that  'he  had 
maintained  principles  favourable  indeed  to  liberty,  but  such 
as  the  best  and  most  dutiful  subjects  in  all  ages  have  been 
known  to  embrace,  viz.  the  Original  Contract,  the  source 
of  power  from  a  consent  of  the  people,  the  lawfulness 
of  resisting  tyrants,  the  preference  of  liberty  to  the  go- 
vernment of  a  single  person.  '*     To  us  these  doctrines  may 

*  Hume's  Kng.  vol.  1,  165. 


442  OF    THE    FORMS    OF    ©OVBRNMENT.  [Lect.  IX 

well  seem  extraordinary  grounds  for  impeaching  a  man  of 
hostility  to  subordination  and  regular  government.  But  Sid- 
ney lived  in  a  despotic  age,  when  vice  and  cruelty  were 
permitted  to  minister  in  the  temples  of  justice;  he  had 
the  misfortune  to  live  in  times  when  his  exertions  for  liber- 
ty made  him  the  more  obnoxious  to  persecution  from 
the  parasites  of  the  throne;  when  the  infamous  Jeffreys 
was  allowed  to  sit  in  judgment;  and  when  to  deny  the 
divine  right  of  kings,  and  the  necessity  of  passive  obedi- 
ence in  subjects,  was  little  else  than  rank  treason,  meriting 
nothing  better  than  a  mock  trial  and  certain  death. 

Bishop  Burnet  gives  us  a  character  of  Sidney  which  in 
part  accounts  for  the  peculiar  odium  in  which  he  was  held 
by  a  people  having  such  crude  notions  of  liberty.  'This 
strong  republican,'  says  he,  'was  a  man  of  extraordinary 
courage,  steady  even  to  obstinacy;  sincere,  but  of  a  tem- 
per that  could  not  bear  contradiction;  a  christian  in  prin- 
ciple, but  averse  to  all  public  worship;  and  an  enemy  to 
every  thing  that  looked  like  a  monarchy.'* 

The  following  observations  on  Sidney's  Discourses  occur 
in  a  letter  from  John  Adams  to  Thomas  Jefferson.  'I 
have  lately  undertaken  to  read  Algernon  Sidney  on  Go- 
vernment. There  is  a  great  difference  in  reading  a  book 
at  four-and-twenty,  and  at  eighty.  As  often  as  I  have  read 
it,  and  turned  it  over,  it  excites  fresh  admiration  that  this 
work  has  excited  so  little  interest  in  the  literary  world. 
There  ought  now  to  be  published  in  America  as  splendid 
an  edition  of  it  as  the  art  of  printing  can  produce,  as  well 
for  the  intrinsic  merit  of  the  work,  as  for  the  proof  it  brings 
of  the  bitter  sufferings  of  the  advocates  of  liberty,  from 
that  time  to  this;  and  to  show  the  slow  progress  of  moral, 
philosophical  and  political  illumination  in  the  world.' 

We  entirely  concur  in   the  sentiments  of   the  venerable 
writer.      The  intervening  period,   however,   has  not  been 
*  Burnet's  <">wn  Timrs 


Leet.  IX. J  OF    THE     FORMS    OF    GOVERNMENT.  44.3 

slow  in  the  progress  of  moral  and  political  illumination. 
On  the  contrary,  the  seeds  disseminated  in  the  works  of 
Sidney,  Harrington,  and  others  of  those  times,  have  been 
wonderfully  prolific;  and  more  has  been  done  to  improve 
the  political  and  moral  condition  of  man,  during  the  cen- 
tury which  has  elapsed  since  these  discourses  were  given 
to  the  world,  than  was  effected  in  all  preceding  ages. 

Sidney  was  sixty-six  years  of  age  when  he  lost  his  life 
in  the  assertion  of  his  darling  liberty. 

4th.  Of  Montesquieu.  The  fame  of  Montesquieu  as 
a  political  philosopher,  is  founded  chiefly  on  the  well 
known  'Spirit  of  Laws,'  and  'The  Cause  of  the  Grandeur  and 
Decline  of  the  Romans,'  the  latter  of  which,  if  inferior  in 
variety  of  thought  and  knowledge,  excels  the  former  in 
the  closeness  and  logic  of  its  reasoning.  Few  works, 
however,  in  any  age  or  nation,  have  contributed  more 
abundantly  to  the  fame  of  their  authors,  than  the  'Spirit  of 
Laws.'  And,  with  the  exception  perhaps  of  Aristotle,  no 
writer,  ancient  or  modern,  has  entered  so  deeply  into  the 
spirit  and  genius  of  government  and  law,  or  been  so  well 
entitled  to  the  distinguished  appellation  of  the  'Legislator 
of  the  Human  Race,  and  the  Prince  of  Philosophical  Po- 
liticians.' 

In  collecting  information  for  his  great  work,  Montes- 
quieu visited  the  greater  part  of  Europe,  and  published  it 
in  1748.  It  is  the  offspring  of  no  less  than  twenty  years' 
reflection  and  diligent  elaboration;  and,  as  its  illustrious 
author  says,  should  not  be  judged  of  by  a  few  hours'  read- 
ing. 

Criticism  on  so  celebrated  a  production  is  perhaps  un- 
necessary; it  has  survived  the  censure  of  his  enemies,  po- 
litical and  literary,  and  ranks  him  among  the  most  emi- 
nent benefactors  of  moral  and  political  science.  We  are 
sensible  that  the  opinion  now  expressed  of  the  great  merit 
of  this  production,  is  not  entertained  by  all,  even  of  the 


444  OF    THK     FORMS    OF    GOVERN-UK  NT.  [L*Cl.  IX 


present  day.  He,  like  his  great  predecessor  Aristotle,  has 
at  all  times  had  enemies  to  his  fame,  no  less  distinguished 
for  their  zeal  than  were  his  friends.  He  has  been,  indeed, 
much  praised,  but  not  a  little  censured.  That  there  are 
faults  in  that  work,  both  in  doctrine  and  style,  cannot  be 
denied:  for  what  human  production  is  exempt  from  either? 
But  as  long  as  genius  is  sublime,  as  long  as  learning  and 
philosophy  have  a  just  influence,  must  the  'Spirit  of  Laws' 
be  regarded  as  eminent  among  the  productions  of  genius. 
The  censurers  of  this  work  have,  in  many  instances  no 
doubt,  been  sincere  in  their  criticism;  but  it  is  equally 
true  that  some  of  the  severity  of  animadversion  has  sprung 
from  party  prejudice,  from  zeal  in  the  support  of  a  dif- 
ferent theory,  and  from  a  fault-finding  spirit,  too  common 
with  many,  who  are  sometimes  contented  with  an  epheme- 
ral reputation  derived  from  opposition,  however  feeble,  to 
the  opinions  of  great  masters  in  science. 

In  citing,  however,  the  following  remarks  from  an  in- 
telligent writer,  we  by  no  means  desire  to  apply  to  his  cri- 
ticism the  motives  we  have  just  mentioned,  though  we  differ 
from  him  in  many  points.      'We  confess,'  says  the  critic, 
'if  we  may  venture  for  once  to  place  our  own  judgment  in 
opposition  to  the  general  voice,  that  we  have  not  been  able 
to  discover  in  the  'Spirit  of  Laws'  all  the  merit  that  is  com- 
monly attributed  to  it.      We  are  inclined  to  think  that  it  is 
more  praised  than  read,  and   more  read  than  understood; 
and  that,  instead  of  making  the  reputation  of  its  author,  it 
depends  upon  his  great  name  for  a  part  of  its  own  popu- 
larity.    Montesquieu  was  a  writer  of  the  highest  standing 
when  this  work  was  published;  and  a  great  work  from  a 
distinguished  writer  is  commonly  received  with  approba- 
tion.     When  we  examine  it  nearly,  we  perceive  a  mass  of 
detached  observations,  but  find  it  almost  impossible  to  dis- 
cover the  plan  that  connects  them  together.      We  meet  oc- 
casionally   with    fine  thoughts  and    eloquent  passages,   but 


Lftct.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  445 

we  seek  in  vain  for  the  great  truths  which  it  is  the  object 
of  so  extensive  a  work  to  establish.  The  book  is  fatiguing 
to  read,  and  we  rise  from  it  without  any  precise  or  definite 
instruction.  The  correctness  of  the  distinction  taken  at 
the  commencement,  between  the  principles  of  different 
governments,  is  extremely  questionable;  and  a  considera- 
ble part  of  the  differences  of  situation  to  which  the  author 
attributes  the  varieties  of  laws,  are  consequences,  instead 
of  being  the  causes,  of  this  variety.  The  chapters  on  the 
British  constitution,  which  are  among  the  remarkable  pas- 
sages of  the  work,  contain  a  theory  entirely  superficial, 
and  not  defended  at  present  by  good  authorities.  The 
Spirit  of  Laws,  like  the  Prince  of  Machiavel,  though  in  a 
less  degree,  has  been,  from  the  time  of  its  publication,  re- 
garded by  many  of  the  best  judges  as  a  sort  of  enigma. 
Voltaire,  who  had  the  art  of  accommodating  his  remarks 
to  his  audience,  observed  in  publick,  'that  the  human  race 
lost  their  title  deeds,  but  that  Montesquieu  had  found  and 
restored  them;'  a  splendid,  though  not  a  very  definite  en- 
comium. But  in  the  confidence  of  private  conversation, 
he  remarked  to  the  Prince  de  Ligne,  that  the  Spirit  of 
Laws  was  a  work  above  his  comprehension.  Professor 
Stewart,  in  his  late  Essay  on  the  Progress  of  the  Moral 
Sciences,  has  resorted,  for  the  purpose  of  explaining  the 
object  of  this  work,  to  a  supposition  similar  to  that  which 
has  been  often  made  in  regard  to  Machiavel's  Prince.  He 
considers  it  as  intended,  in  part,  to  attack  established 
abuses  in  a  covert  way,  by  tracing  them  to  vicious  princi- 
ples.'* 

It  is  not  my  object  to  vindicate,  by  any  minuteness  of 
criticism,  this  great  work  of  the  immortal  Montesquieu.  I 
may  observe,  however,  that  if  this  work  has  been  'praised 
more  than  it  has  been  read  or  understood,'  it  has  not,  we 

•North  American  Review,  April,  1821. 


446  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

think,  been  owing  to  any  intrinsic  obscurity  in  it,  but 
to  the  deep  thought  which  has  distilled,  as  it  were,  a  vast 
science,  and  presented  its  elements  in  the  form  of  senten- 
tious aphorisms.  Much  research  and  anxious  thought 
having  been  exercised  in  its  execution,  it  is  nowise  sur- 
prising that  this  work  should  require  more  than  ordinary 
care  in  its  perusal.  Those  who  think  deeply,  sometimes 
express  themselves  with  obscurity:  this  may  occasionally 
be  a  fault  in  this  great  work;  but,  as  a  whole,  it  is  compre- 
hensible, and  highly  instructive.  Voltaire's  remark  was 
probably  intended  more  as  a  jeu  d'esprit,  than  as  a  delibe- 
rate opinion.  In  regard  to  the  doctrine  which  refers  the 
various  forms  of  government  to  certain  principles  of  action, 
it  is  sufficient  to  observe  that,  when  understood  in  the  sense 
of  Montesquieu,  the  weight  of  reasoning  and  authority  is 
decidedly  with  him:  not,  indeed,  that  a  monarchy,  aris- 
tocracy, democracy  &c.  cannot  be  conducted  on  a  different 
principle  from  the  one  ordinarily  assigned  to  it,  but  that 
these  governments  respectively  are  more  apt  to  be  directed 
by  the  one  principle  than  the  other.  It  must  be  admitted, 
also,  that  the  mere  form  of  government  is  not  that  of 
which  Montesquieu  is  speaking,  but  the  certain  outward 
form,  manifested  in  its  usual  manner,  and  guided  also  by 
that  principle  which  seems,  cseteris  paribus,  the  best 
adapted  for  its  preservation.  The  form,  and  its  usually  at- 
tendant principle  of  action,  constitute,  according  to  Mon- 
tesquieu a  defined  species  of  government:  but  when  differ- 
ent principles  are  fully  assumed,  the  government  is  no 
longer  identical,  though  the  ostensible  form  may  continue. 
All,  therefore,  that  is  intended  by  this  doctrine  of  the 
learned  writer,  is  that  particular  forms  of  government  do 
usually  in  fact  conform  to  certain  principles  which  are  not 
so  apt  to  be  the  guide  of  action  to  other  governments  dif- 
ferently constituted;  and  that  these  particular  principles 
'are  better  adapted  to  continue  those  particular  forms  of  po- 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  447 

lity,  than  principles  of  a  different  nature.  It  appears  to 
us  quite  impossible  to  deny  the  doctrine,  as  thus  under- 
stood. All  experience  verifies  its  truth,  and  all  a  priori 
reasoning  confirms  it. 

We  think,  also,  that  it  would  detract  but  little  from  the 
large  fame  of  Montesquieu,  did  we  even  admit  that  his 
views  of  the  British  government  were  in  some  degree  er- 
roneous. We  apprehend,  however,  that  this  is  not  the 
case,  and  that  the  'present  authorities'  alluded  to  in  the 
remarks  we  have  just  quoted,  have  been  greatly  preju- 
diced in  their  views  of  that  government,  or  have  derived 
their  opinions  of  it  chiefly  from  the  character  which  it  has 
manifested  long  since  the  Spirit  of  Laws  was  written.  The 
mixed  form  of  the  British  constitution  admits  of  an  alter- 
nate or  occasional  preponderance  in  its  various  principles; 
so  that  it  may  assume  the  appearance  of  either  of  the  sim- 
ple forms,  according  to  the  paramount  spirit  of  the  times. 

Let  me  now  direct  your  attention  to  some  very  sensible 
observations  on  Montesquieu  by  Mr  Farneworth,  the 
learned  translator  of  the  works  of  Machiavel.  Speaking 
of  the  great  authors  of  the  Spirit  of  Laws  and  the  Prince, 
Mr  Farneworth  observes,  'As  these  two  writers  possess, 
in  my  opinion,  the  highest  station  in  the  political  scale,  it 
may  be  worth  while  to  give  a  comparative  sketch  of  their 
different  characters.  Machiavel,  born  and  bred  in  tumul- 
tuous and  profligate  times,  and  occupied  in  the  affairs  of  a 
distempered  republic,  caught  his  first  principles  from  what 
he  saw.  Montesquieu,  more  happy  in  his  birth  and  for- 
tune, enjoying  an  early  leisure,  in  a  quiet  and  well  regu- 
lated monarchy,  drew  his  first  principles  of  politics  from 
what  he  read.  Yet  the  former  was  not  given  up  to  mere 
personal  observation,  nor  the  latter  to  mere  study:  in  the 
progress  of  life,  Machiavel  applied  himself  to  books,  and 
Montesquieu  to  men;  yet,  as  was  natural,  their  first  habits 
prevailed,  and  gave  to  each  his  distinct  and  peculiar  cha- 


448  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

racter.  Hence,  though  both  saw  the  internal  and  secret 
springs  of  government,  (which,  in  my  opinion,  no  writer 
but  these  two  did  ever  fully  comprehend  or  penetrate) 
yet  they  saw  them  by  different  lights,  and  through  differ- 
ent mediums.  Machiavel's  leading  guide  was  fact;  Mon- 
tesquieu's was  philosophy.  In  consequence  of  this,  sim- 
plicity forms  the  character  of  one,  refinement  that  of  the 
other.  The  speculative  Frenchman  forms  a  fine  system,  to 
the  completion  of  which  he  sometimes  tortures  both  argu- 
ment and  fact;  the  plain  and  downright  Florentine  builds  on 
facts,  independent  of  all  systems.  The  polite  and  disin- 
terested sage  is  warm  in  praise  of  honesty;  the  active  and 
penetrating  secretary,  above  praise  or  censure,  gives  a 
bold  and  striking  picture  of  the  ways  of  men.  Hence, 
whilst  the  first  gains  every  heart  by  the  force  of  moral 
sympathy,  the  latter  hath  been  unjustly  detested  as  the 
enemy  of  virtue  and  mankind.  Machiavel  is  negligent, 
yet  pure  and  strong;  scorning  the  minute  graces  of  com- 
position: Montesquieu  is  elegant,  yet  nervous;  and  to  the 
acuteness  of  the  philosopher,  often  adds  the  fire  of  the 
poet.  Both  were  the  friends  of  freedom  and  mankind; 
both  superior  to  the  genius  of  their  time  and  country;  both 
truly  great:  the  Florentine  severe  and  great;  the  French- 
man great  and  amiable.'* 

The  late  Dr  Priestley  makes  the  following  observations 
on  Montesquieu.  'He  is  one  of  the  most  excellent  of  all 
political  writers,'  says  the  doctor;  'but  his  lively  manner  of 
expression  is  sometimes  apt  to  lead  his  readers  into  mis- 
takes, if  they  do  not  make  use  of  some  parts  of  his  works 
to  explain  others.  Thus,  it  is  too  peremptory  to  say,  as 
he  does,  that  the  blood  of  Lucretia  put  an  end  to  kingly 
power  at  Rome;  that  a  debtor  appearing  covered  with 
wounds,  made  a  change  in   the  form  of  the  republic;   that 

*  Farnrw.  Work?  of  Machia.  vol.  2,  13,  not* 


Lect.  IX.J      OP  THE  FORMS  OF  GOVERNMENT.  449 

the  sight  of  Virginia  put  an  end  to  the  power  of  the  de- 
cemvirs; and  that  the  sight  of  the  robe  and  body  of  Caesar 
enslaved  Rome.  This  is  certainly  ascribing  too  much  to 
spectacles,  without  telling  what  was  the  reason  why  such 
spectacles,  in  those  particular  circumstances,  had  so  much 
influence;  for,  as  he  himself  excellently  observes,  if  a  par- 
ticular event,  as  the  loss  of  a  battle,  be  the  ruin  of  a  state, 
there  must  have  been  a  more  general  reason  why  the  loss 
of  a  battle  would  ruin  it.'*  We  confess  there  appears  to 
us  little  necessity  for  the  objection  thus  urged  by  Dr 
Priestley.  Surely  a  writer,  however  minute  and  accurate 
he  may  be,  and  little  inclined  to  leave  any  thing  to  the  in- 
telligence of  his  readers,  may  occasionally  use  this  strong 
form  of  expression,  without  the  risk  of  leading  them 
astray.  What  tyro  in  history  or  political  philosoph)', 
could  possibly  suppose  that  the  sage  Montesquieu  intended 
to  acribe  those  great  results  to  such  insulated  and  insignifi- 
cant causes?  He  presumed  that  his  readers  would  be  pos- 
sessed of  the  ordinary  facts  of  history,  and  consequently 
speaks  of  proximate  causes,  of  those  last  and  finishing 
causes,  which,  though  often  in  themselves  very  trifling,  set 
all  other  antecedent  causes  into  active  operation.  Was  it 
necessary  to  inform  the  reader  of  the  Spirit  of  Laws,  why 
the  blood  of  Lucretia  excited  the  Roman  people  to  ter- 
minate kingly  oppression;  why  a  debtor,  covered  with 
wounds,  made  the  people  sensible  of  their  wrongs;  why 
the  tyranny  of  the  decemvirs  appeared  more  odious  when 
Virginia  was  a  victim  of  their  power;  or  lastly,  why  the 
exhibition  of  the  robe  and  body  of  Caesar  terminated  in  the 
slavery  of  Rome?  If  all  this  be  necessary,  the  task -of  an 
author  would  be  onerous  indeed.  He  can  place  no  reliance 
on  the  knowledge  and  intelligence  of  his  readers,  and  must 
never  be  content  until  he  has  traced  up  every  fact,  and  tra- 

*  Priest.  Lect.  on  Hist.  248. 
57 


450  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

veiled  through  every  link  of  the  chain  of  causes  remote 
and  proximate.  This  so  far  from  being  a  fault,  is  often  a 
striking  beauty.     But  to  proceed. 

Sir  James  Mackintosh,  with  his  usual  felicity  of  expres- 
sion, has  passed  on  this  work  a  high  eulogium,  accompa- 
nied, however,  w,ith   a   little  more  of   concession   to    the 
Baron's  censurers  than   we  should    be  disposed  to  allow 
them.    'Montesquieu  has  been,  perhaps  justly,  charged  with 
abusing  his  advantages,  by  the  undistinguishing  adoption 
of  the  narratives  of  travellers  of  every  different  degree  of 
accuracy  and  veracity.     But  if  we  reluctantly  confess  the 
justness  of   this   objection;    if  we  are   compelled   to   own 
that  he  exaggerates  the  influence  of  climate;   that  he  as- 
cribes too  much  to  the  foresight  and  forming  skill  of  legis- 
lators, and  far  too  little  to  time  and  circumstances,  in  the 
growth  of  political  constitutions;   that  the  substantial  cha- 
racter, and  essential  differences  of  governments  are  often 
lost  and  confounded  in  his  technical  language  and  arrange- 
ment; that  he  often  bends  the  free  and  irregular  outline  of 
nature,  to  the  imposing  but  fallacious  geometrical  regulari- 
ty of  system;  that  he  has  chosen  a  style  of  affected  abrupt- 
ness, sententiousness  and  vivacity,  ill  suited  to  the  gravity 
of  his  subject:   after  all  these  concessions,  (for  his  fame  is 
large  enough  to  spare  many  concessions)  the  Spirit  of  Laws 
will  still  remain,  not  only  one  of  the  most  solid  and  du- 
rable monuments  of  the   powers  of  the  human  mind,  but 
a  striking  evidence  of  the  inestimable  advantages  which 
political  philosophy  may  receive  from  a  wide  survey  of  all 
the  various  conditions  of  human  society.'* 

So. much  has  heen  said  by  various  writers  as  to  the 
merits  and  defects  of  the  work  under  consideration,  and 
its  errours,  real  and  asserted,  have  been  so  fully  commented 
on,  that  students  can  be  in    no  danger  of  imbibing  them 

'  Mack.  Intro.  Disc.  28. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  451 

from  the  authority  of  a  great  name,  or  from  the  absence 
of  that  criticism  which  awakens  suspicion,  and  quickens  the 
judgment.     While  the  Spirit  of  Laws,  therefore,  is  read 
by  the  student,  the  statesman,  or  general  politician,  with 
the  fullest  assurance  of  deriving  instruction  and  pleasure, 
they  will  not  be  blind  to  its  errours,  nor  be  disposed  to 
listen  only  to  the  censures  of  its  opponents.     In   conclu- 
sion,  we   would  remark   that,  although  Montesquieu   dis- 
covers, and  has,  we  think,  pointed  out,  the  principles  of 
preservation,  destruction  and  compensation  in  most  forms 
of  government,  it  can  hardly  be   doubted   that  he  was  a 
friend,  if  not  to  a  pure  republic,  at  least  to  a  free  form  of 
government.      As  a  man  of  virtue  himself,  his   declaring 
virtue  to  be  the  characteristic  principle  of  that  species  of 
government,  is  sufficiently  indicative,  it  rriay  be  supposed, 
of  his  own  preference;  particularly  as  he  well  knew  that 
this  is  the  principle  the  least  arbitrary  and  factitious,  the 
most  kindred  to  the  mind,  the  likeliest  to  be  shared  by  all 
degrees  of  men,  and  therefore  the  most  stable  and  enduring. 

Montesquieu's  division  of  government  is  very  simple, 
viz.  into  Despotism,  Monarchy  and  Republic;  the  last  of 
which  he  subdivides  into  democratic  republic,  and  aristo- 
cratic republic.  We  shall  hereafter  have  occasion  to  re- 
mark on  this  classification.  His  opinion  of  a  monarchy  is 
very  delicately  hinted.  'As  a  subject  of  one,'  says  he,  'I 
beg  that  no  one  will  take  this  amiss;  but  I  venture  to  af- 
firm that  in  a  monarchy  it  is  extremely  difficult  for  the 
people  to  be  virtuous.' 

Montesquieu  was  born  in  1689,  and  died  1755,  aged 
sixty-six. 

5th.  Of  Milton.  While  the  poetical  character  of  the 
illustrious  Milton  has  triumphantly  vindicated  the  place 
which  his  own  anticipations  led  him  to  assign  to  it,  his  po- 
litical life  and  opinions  have  been  the  subject  of  long  and 
shameful  obloquy;  an   obloquy  which,  to   the  disgrace  of 


452  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

letters,  he  owes  in  great  part,  in  the  present  age,  to  the  ill 
concealed  intolerance  of  the  distinguished  biographer  of 
the  British  Poets.  Of  late  years,  more  justice  has  been 
done  both  to  the  eloquence  and  sentiments  of  Milton's 
prose  works;  the  first  lofty,  rich  and  original;  the  last 
animated  by  what  seems  to  be  a  just  love  of  liberty,  and  a 
hatred  of  tyranny  and  intolerance  in  any  shape.  He  be- 
longs to  that  old  school  of  British  prose  writers,  who,  na- 
tural, imaginative  and  eloquent  in  the  highest  degree,  and 
with  a  style  which,  if  somewhat  pedantic,  is  perhaps 
more  interesting  than  the  regular  and  balanced  flow  of  mo- 
dern periods,  have  had  the  fortune  either  to  be  much  neg- 
lected, or  to  lend  their  treasures  to  those  who  have  omitted 
to  acknowledge  the  obligation.  We  on  this  side  of  the 
Atlantic,  who  are  destined  to  people  these  vast  regions,  and 
to  spread  and  give  effect  to  those  rays  of  liberty  which 
Harrington,  Sidney,  Milton,  and  a  few  others  saw,  and  de- 
sired to  collect  and  concentrate  to  useful  purpose;  we,  I 
say,  of  all  other  people  that  have  ever  lived,  are  the  most 
bound  to  preserve  the  fair  fame  of  these  martyrs  of  free- 
dom, and  not  only  to  cherish  their  principles,  but  to  pro- 
mote the  study  of  their  political  works.  In  them  are  to 
be  found  the  seeds  of  that  admirable  system  of  rational  li- 
berty which  we  are  now  enjoying. 

Milton  lived  in  unhappy  times,  when  principles  true  in 
themselves  were  shocking  to  one  party  from  their  novelty, 
and  their  hostility  to  their  ancient  privileges;  and  were 
abused  by  another,  whom  experience  had  not  taught  pro- 
perly to  limit  and  modify  them.  But  from  all  that  can  be 
gathered  amidst  the  venomous  animosities  of  party,  he 
seems  to  have  been  the  friend  of  liberty  in  church  and 
state,  and  to  have  had  the  love  of  his  country  deep  at  his 
heart.  There  was  no  department  of  moral  truth  on  which 
he  did  not  seek  to  shed  information,  from  treatises  for  the 
use  of  schools,  up  to  expositions  of  the  highest  abuses  in 


Lect.  IX.]  OP    THE    FORMS    OP    GOVERNMENT.  453 

government.  Thus  we  find  a  'Tractate  on  Education/  a 
'Treatise  on  Church  Government,'  his  'Iconaclastes,'  'A 
Defence  of  the  English  People,'  'Reopagitica,  or  the  Li- 
berty of  Unlicensed  Printing,'  a  work,  it  has  been  said, 
alone  sufficient  to  embalm  him  in  the  memory  of  his  coun- 
try; 'Sketch  of  a  Commonwealth,'  'A  Treatise  of  True 
Religion,  Toleration,  &c.'  'A  Scheme  of  Logic,'  and  nu- 
merous other  works,  most  of  which  are  extremely  good, 
and  must  have  produced  a  considerable,  though  a  gradual 
and  silent  effect. 

Milton  was  born  in  1608,  in  the  reign  of  James  I.  and 
died  in  1674,  in  that  of  Charles  II.  His  character  will 
perhaps  be  best  appreciated  by  those  who  recollect  that 
'mistaken  notions  and  principles  are  perfectly  compatible 
with  elevation  and  integrity  of  mind.'  There  may  be 
some  apology  necessary  for  the  occasional  intemperance 
and  errours  of  which  Milton  was  guilty  in  his  political  life; 
but  the  lovers  of  free  government  will  rank  him  among 
the  most  strenuous  of  its  advocates,  and  of  those  writers 
whose  liberality  and  independence  have  paved  the  way  to 
its  progress  in  later  times.  Let  us  now  proceed  to  another 
political  writer. 

6th.  Op  John  Locke.  He  was  one  of  the  four  princi- 
pal philosophers  of  England,  and  was  born  near  Bristol, 
in  1632,  in  the  reign  of  Charles  I.  It  may  not  be  unin- 
teresting to  know  that  the  father  of  this  distinguished 
champion  of  constitutional  government  was  himself  a  firm 
assertor  of  liberty  in  another  mode,  being  a  captain  in  the 
parliamentary  army  during  the  civil  war.  The  writings 
of  Descartes  are  said  to  have  first  given  Locke  a  relish 
for  the  study  of  philosophy,  though  he  did  not  mainly  ap- 
prove of  the  sentiments  of  the  French  philosopher.  Locke 
also  devoted  himself  to  the  study  of  medicine,  principally, 
it  is  said,  for  the  benefit  of  his  own  constitution,  which 
was  weakly,  but  which  he  preserved  to  a  tolerable  age, 


454  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

seventy-three,  through  the  use  of  a  water  diet,  and  such 
active  exercise  as  an  asthmatic  complaint  allowed  him  to 
take.  To  his  water  diet  he  ascribed  likewise  the  long  re- 
tention of  his  eye-sight;  for  to  the  last,  he  could  read  the 
smallest  print  by  candlelight  without  spectacles.  This  is 
of  such  importance  to  those  whose  lives  are  to  be  devoted 
to  study,  that  I  have  deemed  it  worthy  of  notice  even  in 
the  very  brief  sketch  of  his  life  to  which  I  am  necessarily 
limited.  It  is  probable,  however,  that  he  was  in  reality 
turned  to  the  study  of  medicine,  less  by(the  reason  which 
has  been  assigned,  than  a  love  of  all  sorts  of  knowledge;  a 
disposition  which  led  him,  not  only  to  the  study  of  the  hu- 
man understanding,  but  of  theology,  political  economy, 
and  the  science  of  government, 

In  his  works  on  this  last  subject,  Locke  displayed  the 
same  unshackled  and  unprejudiced  mind,  and  the  same  free 
principles  of  inquiry,  that  have  brought  his  name  to  the 
present  age,  as  a  metaphysician  and  philosopher  of  the  hu- 
man mind.  It  was  not  till  after  the  Revolution,  namely  in 
1689,  that  he  published  his  two  Treatises  on  Government, 
his  principles  and  political  friendships  having  previously 
rendered  him  obnoxious  to  the  government  of  James  II. 
in  consequence  of  which  he  had  retired  to  Holland.  In 
these  treatises  he  vindicated  the  principles  of  the  revolu- 
tion of  16SS,  and,  as  his  biographer  says,  'entirely  over- 
turned all  the  doctrines  of  slavery.'  Shortly  after  this, 
he  published  his  'Considerations  on  lowering  the  Interest, 
and  raising  the  Value  of  Money,'  essays  called  forth  by 
the  disorders  arising  from  the  practice  of  clipping  the 
coin,  and  an  attempt  by  the  government  to  raise  its  value 
by  publick  authority.  On  this  subject,  which  is  now  also 
better  understood,  Locke  went  before  his  age,  and  confuted 
the  opposers  of  his  doctrines,  proving  his  acquaintance 
with  business,  and  the  nature  and  principles  of  commerce, 
as  well  as  with  the  more  subtile  and  abstract  topicks  of 


Lect   IX.]  OF    THE    FORMS    OF    GOVERNMENT.  455 

metaphysicks.  He  was  in  much  esteem  with  King  Wil- 
liam, who  frequently  conversed  with  him  on  public  affairs. 
He  was  the  intimate  also  of  Lord  Ashley,  afterwards  the  ce- 
lebrated Earl  of  Shaftesbury,  and  the  tutor  of  his  grandson, 
the  famous  author  of  the  'Characteristieks,'  who  always 
acknowledged  his  obligations  to  Locke,  though  he  has 
spoken  with  much,  and,  we  think,  with  just  severity,  of 
some  parts  of  his  Essay  on  Human  Understanding. 

It  is  gratifying  to  find  geniuses  so  powerful  and  original 
as  Locke  and  Milton  and  Harrington,  engaged  as  advocates 
of  constitutional  government.  Yet  such  is  the  weakness 
of  human  nature,  and  so  liable  are  the  most  finely  turned 
geniuses  to  be  biassed  by  the  prejudices  of  their  age  or 
condition,  or  by  the  peculiarity  of  their  temperament,  that 
it  must  be  confessed  there  is  not  much  gained  to  the  force 
of  truth  by  an  appeal  to  authority.  Milton,  Locke  and 
Sidney  could  not  see  the  whole  truth,  or,  if  they  perceived 
it,  such  were  the  prejudices  of  education,  the  force  of  habit, 
and  the  control  of  self-interest,  that  their  writings  still 
manifest  some  concessions  to  the  friends  of  monarchy  and 
absolute  power,  which  do  not  suit  the  genius  of  the  repub- 
lics of  our  own  time.  Harrington,  however,  may  almost 
be  considered  an  exception  to  this  remark.  He  was  fear- 
less and  explicit,  and,  for  the  age  in  which  he  lived,  his  li- 
beral doctrines  are  truly  surprising.  It  is  rather,  there- 
fore, to  common  consent,  and  the  gradual  diffusion  of 
sound  thought,  that  we  must  look  for  the  support  of  ra- 
tional and  liberal  doctrines  in  regard  to  government.  In- 
dividual peculiarity  may  bias  an  individual  judgment;  but 
the  very  differences  of  the  many  gradually  settle  into  uni- 
formity and  certainty:  A  mortifying  truth  this  to  the  ad- 
mirers of  genius,  who  are  so  little  inclined  to  find  imper- 
fections in  minds  they  have  so  much  cause  to  delight  in; 
but  necessary  to  be  remembered,  in  our  deference  to  au- 


456  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

thority,  and  in  our  estimate  of  opinion,  if  we  would  steer 
clear  of  errour. 

7th.  Of  Hume.  This  acute  and  ingenious  philosopher 
has  written  his  own  biography  with  a  modesty  very  com- 
mendable in  one  who  speaks  of  himself.  It  is  to  be  re- 
gretted, however,  that  he  did  not  furnish  us  with  more 
particulars  of  a  life  whose  philosophical  temperance  and 
regularity  emulate  those  of  ancient  sages.  Of  such  singu- 
lar equanimity  was  this  first  of  English  historians,  that  we 
cannot  readily  persuade  ourselves  that  he  had  written  with 
partiality;  and  if  the  point  be  established  against  him,  it  is 
a  singular  proof  that  the  most  phlegmatic  temperament  is 
not  a  preservative  against  strong  prejudices,  and  that  he 
who  is  without  philosophical,  may  yet  be  influenced  by 
personal  or  party  attachments.  Hume  was  born  at  Edin- 
burgh in  1711,  and  was  intended  for  the  law.  His  classi- 
cal propensities  soon  diverted  him  from  this  enterprise, 
and  caused  him  also  to  quit  in  disgust  a  mercantile  concern 
which  he  had  entered  into  at  Bristol.  He  therefore  re- 
tired into  France,  and  there  he  composed  his  'Treatise  of 
Human  Nature,'  which  was  published  in  1738,  with  very 
little  success.  The  first  part  of  his  Essays  appeared  four 
years  afterwards,  and  was  rather  more  favourably  received; 
but  his  'Political  Discourses,'  and  his  'Inquiry  Concerning 
the  Principles  of  Morals,'  published  in  1752,  met  with  as 
little  notice  as  his  first  production,  though  he  regarded 
them  as  highly  finished  compositions.  With  similar  dis- 
regard was  that  portion  of  his  history  received,  embracing 
the  period  from  the  accession  of  the  house  of  Stuart  to  the 
death  of  Charles  I.  and  which  was  published  in  1754;  nor 
was  it  till  the  subsequent  volume  appeared,  that  it  began  to 
engage  the  attention  of  the  publick.  Perhaps  the  history 
of  letters  furnishes  us  with  no  instance,  Milton's  poem  ex- 
cepted, in  which  the  first  reception  and  subsequent  re- 
nown of  works,  have  been  so  greatly  contrasted. 


Lect.  IX.]  OF    THK     FORMS    OF    GOVERNMENT-  457 

However  attached  Hume  might  have  been  to  the  tory 
party  in  politics,  we  cannot  set  him  down  as  an  advocate 
of  arbitrary  power,  or  even  as  unfriendly  10  republican 
principles.  The  firmest  attachment  to  liberty  is  certainly 
not  incompatible  with  an  apologetic  feeling  for  those  whom 
custom,  and  the  possession  of  power,  caused  to  look  on  arbi- 
trary authority  as  their  inheritance,  and  to  oppose  the  pro- 
gress of  the  age  as  unwarranted  innovation.  Such  was 
the  light  in  which  this  able  historian  regarded  the  Stuarts ; 
nor  does  his  apology  for  them  seem  to  me  to  go  further 
than  to  palliate  their  acts,  by  showing  that  they  exerted 
the  same  authority  as  their  ancestors,  and  stood  too  firmly 
on  the  basis  of  prescriptive  authority,  without  sufficient  re- 
gard to  the  temper  of  the  times,  and  the  change  of  circum- 
stances. Even  able  and  virtuous  men,  the  heirs  of  a  long 
exerted  authority,  may,  in  such  circumstances,  come  into 
very  unhappy  collision  with  the  champions  of  liberal  and 
rational  opinions;  and  seduced  by  the  notion  of  legiti- 
mate rule,  fall  behind  the  progress  of  the  age,  and  thus 
incur  an  odium  which,  in  times  less  fertile  of  change,  had 
perhaps  taken  the  form  of  admiration  and  love.  We  must 
confess,  for  our  own  part,  as  we  have  elsewhere  said,  that 
we  cannot  but  believe  with  Hume,  that  regular  and  con- 
stitutional liberty  was  in  Britain  the  growth  of  a  late  age; 
and  that  so  far  from  having  been  diminished  by  the  arbi- 
trariness of  the  Stuarts,  it  was,  in  fact,  only  opposed  by 
them  in  its  onward  progress.  We  leave  this,  however,  to 
be  settled  by  more  diligent  inquiries,  our  object  in  these 
early  lectures  being  rather  to  awaken  inquiry,  than  fully  to 
satisfy  doubts.  The  question  here  suggested  is  at  present 
engaging  the  literary  inquisitiveness  of  the  day.  Hume 
died  in  1776,  aged  65. 

8th.   Of  Frederick  II.      Though  Frederick   is   not   to 
be  classed   among  the  advocates  of  constitutional   govern- 
ment, he  was,  however,  n  wise  prince,  zealous  of  the  hap- 
58 


458  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

piness  of    his   subjects.      Of    political    liberty   his  notions 
were,  perhaps,  those  of  an  arbitrary  king;   but  so  far   as 
equal  justice  to  all,  toleration  in  religion,  and  ambition  to 
meliorate  the  condition  of  his  subjects,  compose  civil  liber- 
ty, he  may  be  considered  as  its  friend.      It  was  under  him- 
self and  his  father,  that  Prussia  grew  to  the  rank  of  a  prin- 
cipal kingdom  in  Europe,  and  attained,  in  spite  of  perpe- 
tual wars,  a  great  share  of  commerce,  wealth  and  improve- 
ment.     Merit,    therefore,  he  undoubtedly   possessed;   and 
whether  we  attribute  his  zeal  for  the  prosperity  of  his  peo- 
ple to  benevolence,  or  to  an  ambition  to  make  his  resources 
in  war  as  great  as  possible  through  their  strength,  we  must 
allow  him  wisdom  in  the  prosecution  of  his  aim.     He  has 
been  accused,  with  some  justice  perhaps,  of  legislating  too 
much;    wasting    the    means  of   his    treasury    in   fostering 
branches  of  industry  foreign  to  the  soil  and   climate,  and 
beyond  the  capacities  of  his  people.      But,  with  all  his  ar- 
bitrary acts,  his  rash  speculations,  and  his  unwise  intermed- 
dling with  the  course  of  commerce;  his  wars,  his  literary 
weaknesses  and  squabbles,  and  the  hardness  of  temper  im- 
puted to  him;  few  sovereigns  have  brought  to  the  throne 
so  many  admirable  qualities  for  the  wise   and  happy  go- 
vernment of  their  subjects.      In  such  an  administration  as 
Frederick's,  is  observable  the  difference  between  civil  and 
political  liberty.      His   subjects  were  perhaps,  to  a  consi- 
derable degree,  in  the  actual  enjoyment  of  the  first;   but  of 
the  last  they  had  none  whatever.      No  king  could  be  more 
despotic,   though  it  must    be   allowed   that   his  despotism 
very  generally  took  a  benevolent  direction.     This  monarch 
wrote  a  Commentary  on  'The  Prince'  of  Machiavel,  and  as 
he  supposes  that  treatise  to  contain  the  real   sentiments  of 
the  author,  he  is  not  sparing  in  censure  of  that  celebrated 
production.      As  far  as  an  author's  works  are  evincive  of 
sincerity,  Frederick  has  manifested  in  his  Commentary  the 
utmost  detestation  of  the    arbitrar}   and  despotic  doctrine* 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  459 

said  to  be  inculcated  in  'The  Prince.'  Voltaire  wrote  a  pre- 
face to  the  king's  Commentary,  in  which  he  remarks, 
that  'although  Machiavelian  principles  were  well  refuted 
in  this  treatise  of  the  Prussian  monarch,  the  world  might 
one  day  see  a  still  better  refutation  of  them  in  the  history 
of  his  life,'  an  augury  which  has  not  been  very  gratify- 
ingly  accomplished. 

In  conclusion,  we  would  observe  that  some  little  confu- 
sion exists  in  naming  Frederick:  by  the  English  he  is 
often  called  Frederick  III.  by  the  Germans,  always  Frede- 
rick II.  The  mistake  of  the  English  arises  from  con- 
founding the  Frederick-Williams  with  the  Fredericks  of 
Prussia.  Frederick  the  Great,  of  whom  we  are  speaking, 
is  properly  Frederick  II.  He  was  born  in  1712,  ascended 
the  throne  in  1740,  and  died  1786,  aged  75j  after  a  life  sin<- 
gularly  divided  between  unexampled  military  activity,  the 
cultivation  of  the  civic  arts,  and  literary  leisure;  of  which 
last  he  has  left  some  monuments,  destined  perhaps  to  the 
same  perpetuity  as  his  renown. 

9th.  Of  Confucius,  or  Cong-Fu-Tze.  This  was  one  of 
those  extraordinary  men  whom  virtue,  and  a  kind  of  di- 
rectness in  moral  feeling,  seem  to  lead  before  their  age,  to 
the  discovery  of  truth.  Confucius  was  born  of  a  noble 
family,  at  Champing  in  China,  about  550  B.  C.  He  seems 
to  have  been  the  Socrates  of  the  Chinese,  and  to  have  ap- 
plied himself  chiefly  to  moral  philosophy,  as  reducible  to 
practice.  He  bewildered  himself  with  no  abstruse  re- 
searches into  the  essence  of  the  first  cause,  or  of  the  origin 
of  the  world,  and  good  and  evil;  but  taught  the  existence 
and  reverence  of  a  first  cause,  a  pure  and  perfect  essence, 
the  author  of  all  things;  and  that  his  providence  sees  and 
provides  for  us,  and  rewards  virtue,  and  punishes  vice.  In 
his  books  on  morals,  which  have  been  translated  into 
French,  is  to  be  found  that  comprehensive  maxim  of  morali- 
ty, 'Love  thy  neighbour  as  thyself.'     There  was  never  a 


460  OF    THE     FORMS    OF    GOVERNMENT.  |  Lect.  IX. 

higher  panegyric  passed  on  man,  than  the  promulgation  of 
this  maxim  of  Confucius  by  the  author  of  our  holy  religion, 
as  one  half  the  theme  of  all  the  law  and  the  prophets. 
Another  singular  coincidence  is,  that  Confucius,  like  Christ, 
selected  ten  of  his  pupils,  to  whom  he  communicated  fully 
his  knowledge  and  his  precepts. 

Many  beautiful  thoughts  of  Confucius  are  to  be  found  in 
Goldsmith's  'Citizen  of  the  World.'  The  extraordinary 
talents  of  Confucius  early  attracted  the  notice  of  his  coun- 
trymen: he  was  appointed,  when  very  young,  to  the  office 
of  minister  of  state.  H:s  maxims,  moral,  religious  and 
political,  had  a  wonderful  influence  for  a  time;  but  such 
was  the  force  of  habit,  that  the  people  relapsed  into  their 
former  irregularities.  He  then  devoted  himself  to  private 
instruction  in  morals  and  the  art  of  government.  Not 
being  as  successful  in  his  teaching  as  he  ardently  desired, 
he  sickened  with  grief  at  the  perverseness  of  the  people. 
He  remarked,  'The  kings  will  not  follow  my  maxims;  I 
am  no  longer  useful  on  earth;  it  is  therefore  time  that  I 
quit  it;'  after  which,  it  is  recorded,  he  became  affected  by 
a  lethargy,  of  which  he  soon  died. 

More  than  twenty-three  centuries  have  elapsed  since  the 
death  of  this  remarkable  philosopher;  yet  such  is  the  ve- 
neration paid  to  his  memory  at  the  present  day,  that  his 
descendants  have  conferred  on  them  the  title  of  mandarins, 
and,  in  common  with  princes  of  the  blood,  are  exempted 
from  all  taxes  to  the  emperor.  He  died  in  the  seventy- 
third  year  of  his  age. 

10th.  Of  Bolingbroke.  Henry  St.  John,  afterwards  cre- 
ated by  Queen  Anne  Viscount  Bolingbroke,  was  born  in  the 
year  1672,  at  Battersea  in  Surrey,  of  an  ancient  and  honour- 
able family,  which,  if  there  be  any  merit  in  it,  may  be  traced 
beyond  the  conquest.  His  youth  gave  little  indication  of 
future  eminence;  for  though  his  genius  and  understanding 
were  acknowledged,  his  love  of  pleasure  had  the  entire  as- 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  461 

cendancy,  and  till  his  twenty-eighth  year,  he  was  only  no- 
torious for  his  profligacy,  the  effects  of  which,  it  must  be 
confessed,  were  somewhat  visible  throughout  his  life,  and 
gave  a  little  of  its  colouring  to  most  of  his  productions, 
especially  to  those  on  morals.  In  the  year  1700,  he  pro- 
cured a  seat  in  the  House  of  Commons,  and  joining  his 
fortunes  to  those  of  the  celebrated  Harley,  afterwards  Earl 
of  Oxford,  the  head  of  the  tory  party,  he  was  in  1704 
appointed  secretary  at  war.  The  whigs  gaining  the  as- 
cendancy a  few  years  after,  Bolingbroke  resigned  his  office, 
nor  was  he  returned  in  the  parliament  of  1708.  During 
an  interval,  therefore,  of  more  than  two  years,  he  engaged 
in  the  severest  study,  and  this  recluse  period  he  after- 
wards considered  as  the  most  active  and  serviceable  of  his 
whole  life.  In  1710,  he  was  again  chosen  for  parliament, 
and  the  tory  party  prevailing  once  more,  he  was  appointed 
to  the  post  of  secretary  of  state,  which  he  held  during  a 
period  of  extreme  turbulence,  and  with  genius  and  assidu- 
ity seldom  united  in  such  a  degree. 

It  was  at  this  period  that  he  negotiated  the  celebrated 
treaty  of  Utrecht,  which  has  been  the  subject  of  so  much 
cavil.  But  Marlborough  and  the  whigs  finally  prevailing, 
and  George  I.  succeeding  to  the  throne,  Bolingbroke  fell 
into  disgrace,  and  being  threatened  with  impeachment  for 
high  treason,  withdrew  into  France.  Here  he  was,  for  a 
short  time,  attached  to  the  Pretender,  having  been  previ- 
ously attainted  at  home;  but,  by  a  singular  fortune,  becom- 
ing obnoxious  to  both  parties,  he  betook  himself  again  to 
retirement  and  study,  and  composed  during  his  exile  his 
most  celebrated  works. 

Bolingbroke  is  the  author  of  many  political  writings, 
distinguished  by  force,  ease  and  elegance  of  style.  Those 
which  rank  him  among  writers  of  general  politics,  are  his 
'Spirit  of  Patriotism/  and  the  'Idea  of  a  Patriot  King;'  his 
'Remarks  on  the  History  of  England',  and  his  'Dissertation 


462  OF    THE    FORMS    OF    GOVERNMENT.  [Led.  IX. 

on  Parties.'  His  'Letter  to  Sir  William  Wyndham'  is  a 
masterpiece.  Dr  Goldsmith  remarks  that,  as  a  political 
writer,  'few  can  equal,  and  none  can  exceed  Bolingbroke. 
As  he  was  a  practical  politician,  his  writings  are  less  filled 
with  those  speculative  illusions  which  are  the  result  of  so- 
litude and  seclusion.  They  prevailed  at  the  times  in  which 
they  were  written,  they  still  continue  to  be  the  admiration 
of  the  present  age,  and  will  probably  last  for  ever.'* 

11th.   Of    the  Authors  of  the  Federalist.      This 
work  is  to  Americans  an  interesting  and  highly  valuable 
exposition  of  the  Constitution  of  the  United  States.     I  pre- 
sume that  you  are  well  acquainted  with  the  history  and 
character  of  its  distinguished  authors,  Hamilton,  Madison 
and  Jay.     I  shall,  therefore,  have  but  little  to  say  of  this 
work.      It  was  undertaken  by  them  immediately  after  the 
promulgation  of  the  federal  constitution,  being,  in  fact,  a 
series  of  newspaper  dissertations,  designed  to  expound  the 
principles,  and  demonstrate  the  necessity,  of  the  new  go- 
vernment of  the  nation.     The  labour  chiefly  devolved  on 
Alexander  Hamilton,  he  being  the  author  of  sixty-four  of 
the  papers;   of  the  rest,  three  were  written  by  Hamilton 
and  Madison  jointly;  fourteen  by  Madison  alone,  and  five 
by  Jay. 

It  is  seldom  that  the  speculations  of  philosophers  have 
been  so  remarkably  verified  as  those  of  the  writers  of  the 
Federalist.  It  is  a  fact  very  honourable  to  the  authors  of 
this  work,  that  their  opinions  of  the  proposed  system, 
founded  on  a  priori  reasoning,  form  an  accurate  commen- 
tary on  the  practical  operation  of  a  scheme  at  that  time  but 
just  organized. 

Mr  Walsh,  in  a  very  sensible  and  interesting  review  of 
the  Federalist,  remarks  that,  'though  written  in  a  short 
period,  it  wears  the  air  of  a  finished  production,  and  as  a 

*  Golds.  Works,  vol.  4,  346. 


Lect.  IX.]  OF    THE    FORMS    OF    GOVERNMENT.  463 

treatise  on  the  science  of  politics,  may  claim  a  high  rank 
among  the  most  profound  and  luminous  which  the  literature 
of  any  nation  can  boast.  The  literary  efforts  of  the  coali- 
tion were  eminently  successful,  and  contributed  in  a  sen- 
sible degree  to  the  final  triumph  of  the  constitution,  by 
force  of  the  soundest  reasoning.'* 

The  Federalist,  we  may  add,  should  be  studied  by  every 
citizen  of  the  republic,  desirous  of  appreciating  its  institu- 
tions and  policy.  This,  together  with  the  luminous  and 
very  able  opinions  of  the  present  chief  justice  of  the 
United  States,  on  the  many  important  questions  of  consti- 
tutional law  which,  to  the  good  fortune  of  his  country,  it 
has  been  his  part  to  decide  on,  forms  an  almost  complete 
commentary  on  every  branch  of  the  constitution  under 
which  we  live,  and  leaves  little  to  be  added  by  future  judges 
and  commentators. 

It  is  unnecessary  to  recal  particulars  of  the  lives  of  men 
so  familiar  to  American  history,  most  of  whom  are  your 
contemporaries.  Hamilton  is,  perhaps,  the  greatest  and 
most  powerful  genius  of  which  this  country  has  to  boast. 
His  mind  was  at  once  strong  and  elegant,  judicious  and 
comprehensive;  and  his  superiority  to  all  other  men  of  his 
nation  was  publickly  recognized  by  the  man  at  whose 
hand  the  world  has  to  deplore  the  loss  of  him.  By  some 
it  has  been  supposed  that  the  chastity  of  style  which  dis- 
tinguishes the  state  papers  of  Washington,  was  in  some 
degree  the  offspring  of  the  touches  of  his  friend  and  con- 
fidant, Hamilton;  and  his  papers  in  the  Federalist  are 
certainly  distinguished  above  those  of  his  very  able  coad- 
jutors, by  strength,  clearness  and  brilliancy. 

Mr  Madison,  as  a  finished  scholar,  and  a  learned  poli- 
tician, was  no  doubt  his  superior;  and  in  strength  and 
vigour  of  intellect,  nearly  his  equal;   but  he  was  somewhat 

•    Vmcri<  an  Review,  vol.  '<■  No  No.  1 


464  OF    THE    FORMS    OF    GOVERNMENT.  [Lcct.  IX 

deficient  in  that  practical  wisdom  and  knowledge  of  the 
world  which  so  eminently  marked  the  life  of  Hamilton. 

12th.  Of  Jeremy  Bentham.  This  writer,  who  has 
made  so  much  noise  in  our  own  day,  was  born  in  the  year 
1747.  He  completed  his  education  at  Westminster  school, 
and  at  Oxford,  with  much  distinction,  and  he  was  called 
early  to  the  bar.  Being  the  son  of  a  very  eminent  solicitor, 
and  thus  probably  favoured  with  an  early  introduction  to 
business,  and  possessing,  moreover,  learning,  extraordinary 
talents,  and  indefatigable  application,  he  might  have  had 
the  most  complete  success  at  the  bar;  and,  'could  he  have 
persuaded  himself  to  accommodate  his  political  principles 
to  the  wishes  of  those  in  power,  the  most  splendid  station 
and  the  highest  honours  would  have  been  infallibly  within 
his  reach.'*  It  seems,  however,  that,  careless  of  these  ad- 
vantages, Bentham  soon  relinquished  his  profession,  and 
devoted  himself  to  the  science  of  legislation,  in  which  his 
labours,  during  more  than  half  a  century,  were  unceasing, 
and  his  publications  numerous,  and  generally  well  received. 

Bentham's  favourite  idea  is,  that  the  laws  of  all  nations 
may,  by  a  process  of  logical  severity,  be  reduced  to  their 
first  elements,  and  that  the  entire  system  may  be  digested, 
and  presented  in  the  form  of  a  written  code,  so  as  entirely 
to  abolish  judicial  legislation,  and  perhaps  nearly  to  ex- 
clude judicial  interpretation.  This  scheme  has  taken  the 
name  of  codification,  and  has  been  much  applauded  by 
some,  and  equally  ridiculed  by  others. 

A  true  citizen  of  the  world,  Bentham  has  offered  his 
services  to  various  nations  in  the  formation  of  a  code,  and 
has  explained  his  principles  in  various  tracts.  He  ten- 
dered his  aid  to  the  National  Assembly  of  France,  at  the 
beginning  of  the  Revolution,  and  wrote  on  their  judicial 
establishments,  their  colonies,  and  the  mode  of  conducting 

■  Edinburgh  Review,  Nov.  IS1". 


Lect.  IX  OF    THE    FORMS    OF    GOVERNMENT.  465 

the  proceedings  of  the  assembly  itself,  or,  as  he  termed  it, 
its  Tactics.  He  had  the  same  desire  in  regard  to  Poland, 
and  in  his  own  country  he  has  availed  himself  of  every 
occasion  to  suggest  improvements  in  its  policy  and  laws: 
thus,  he  has  given  his  views  on  the  statutes  of  usury;  on 
the  taxes  on  law  proceedings;  on  the  projected  reform  of 
the  judicial  establishments  of  Scotland;  on  penal  labour; 
on  penal  colonization.  His  greater  works  are,  an  'Intro- 
duction to  the  Principles  of  Morals  and  Legislation;'  a 
'Treatise  on  Civil  and  Penal  Legislation;'  'Theorie  des 
Peines  et  des  Recompenses;'  'Fragment  on  Government,' 
being  a  critique  on  some  passages  in  Blackstone's  Commen- 
taries; 'Panopticon,'  being  a  treatise  exhibiting  new  views 
as  to  the  construction  of  buildings  for  the  confinement  of 
persons  of  any  description  who  are  to  be  kept  under  in- 
spection, such  as  penitentiary-houses,  mad-houses,  lazaret- 
toes,  hospitals,  poor-houses  &c. ;  'Chrestomathia,'  being  a 
treatise  explanatory  of  a  school  for  the  higher  branches  of 
learning,  &c  &c. ;  'Introduction  to  the  Rationale  of  Evi- 
dence;' 'Church  of  Englandism;'  and  'Elements  of  the  Art 
of  Packing  Special  Juries.'  His  works  amount  to  about 
forty  volumes,  of  various  sizes. 

Besides  these  various  efforts  and  labours,  he  endeavoured 
to  make  himself  useful  to  two  nations  of  very  opposite 
characters,  but  who  united  in  neglecting  his  offers.  He 
addressed  himself,  in  1814,  to  the  emperor  Alexander, 
offering  to  form  a  code,  an  object  which  has  in  some  degree 
occupied  the  Russian  sovereigns  ever  since  the  year  1700. 
The  emperor's  reply  to  Mr  Bentham  did  not  correspond 
to  his  views,  so  that  he  declined  making  any  further  pro- 
position to  his  majesty  on  the  subject.  This,  we  think,  is 
much  to  be  regretted,  as  it  is  impossible  to  doubt  that 
much  good  would  have  resulted  from  Mr  Bentham's  la- 
bours. Impressed  with  the  evils  of  our  unwritten  law,  as 
far  as  it  is  based  on  the  English  common  law,  and  also  the 
59 


466  OF    THE     FORMS    OF    GOVERNMENT.  [Lect.  IX 

imperfections  of  our  statute  law,  Mr  Bentham,  as  early  as 
October  1811,  addressed  a  letter  to  president  Madison, 
containing  a  similar  offer,  viz.  to  reform  and  codify  our 
laws.  Five  years  after,  the  president  acknowledged  the  re- 
ceipt of  this  letter,  but  informed  him  that  it  was  not  within 
the  scope  of  his  functions  to  accept  the  offer.  The  repub- 
lic of  Geneva,  however,  appointed  Mr  Dumont,  his  disci- 
ple and  translator,  to  prepare  for  them  a  penal  code.  What 
progress  has  been  made  in  this  enterprise,  we  have  not  yet 
learned. 

The  character  of  Bentham  has  been  variously  estimated 
by    friends  and  foes.      It  must  be  conceded  on  all  hands, 
that  he  has  been  a  zealous  propagator  of  his  philosophy, 
and  has  laboured  in  what  he  conceived  to  be  the  cause  of 
morals  and  sound  government,  with  an  utter  disregard  of 
ordinary  emolument.      His  admirers  predict  that,  whatever 
may   be   his  success  with   his   contemporaries,   to   remote 
ages  and  uncivilized    nations  he  will  be  a  teacher  and  a 
legislator.      Bv  others  he  has  been  ridiculed  as  an  enthu- 
siast  and   a   visionary.      Nothing,  indeed,  can  exceed   the 
reproaches  which  have  been  thrown  on  him  by  the  govern- 
ment party  in  Great  Britain,  which,  however,  may  argue 
but  little  against  him.      How  much  of  this  reproach  arises 
from  his  intemperance  in  party  politics;  how  much  from 
his  exaggerations  of  the  corruption  and  profligacy  of  the 
times,    and   of  pubiick   men   and   professions;  how    much 
from    the    acknowledged    pedantry   and   involution   of  his 
style,    it  is  difficult  to  estimate  with  any  exactness.      He 
certainly  possesses  the  learning  and  wisdom,  but  wants  the 
temper  of  a  philosopher;  and  we  cannot  but  think  that  it 
was  a  visionary  expectation,  that  any  foreign  nation  would 
entrust  to  a  stranger  the  formation  of  a  code  which  was  to 
affect  their  lives,  their  liberties,  and  their  property;  to  di- 
rect the  procedure  of  their  courts,  re-fashion  their  laws, 
and  influence  all  their  habits  and  institutions.     A  rejection 


Lect.  IX.]  OF    THE     FORMS    OF    GOVERNMENT  467 

of  such  a  proposition  would  have  been  anticipated  by  a 
sober  judgment.  Still  we  highly  respect  Mr  Bentham's 
motives,  and  truly  believe  that  he  has  done  some  good,  and 
could  have  accomplished  much  more  had  he  better  known 
how  to  offer  his  services,  and  had  those  to  whom  they 
were  tendered,  better  known  how  and  to  what  extent  to 
receive  them.  The  truth  is,  that  this  philosopher  has  al- 
ready met  the  fate  of  many  who  have  been  pioneers  in 
schemes  of  improvement.  The  world  receives  their  la- 
bours, and  beholds  their  zeal  with  cold  ingratitude,  whilst, 
at  the  same  time,  many  of  their  valuable  ideas  are  adopted, 
and  variously  fashioned,  often  without  the  least  acknow- 
ledgment, and  sometimes  even  with  reproaches  against 
them  for  being  closet  philosophers,  and  mere  visionaries, 
meditating  'in  nook  monastic'  on  matters  of  the  greatest 
practical  interest  to  the  world. 

We  shall  close  our  remarks  on  this  interesting  writer  on 
legislation,  with  a  portrait  of  his  character,  as  it  has  been 
drawn  by  one  of  his  recent  biographers.  The  anonymous 
author  of  'The  Spirit  of  the  Age'  thus  speaks  of  him:  'Mr 
Bentham  is  very  much  among  philosophers  what  La  Fon- 
taine was  among  poets:  in  general  habits,  and  in  all  but  his 
professional  pursuits,  a  mere  child.  He  has  lived  for  the 
last  forty  years  in  a  house  in  Westminster,  overlooking 
the  park,  like  an  anchorite  in  his  cell,  reducing  law  to  a 
system,  and  the  mind  of  man  to  a  machine.  He  scarcely 
ever  goes  out,  and  sees  very  little  company.  The  favour- 
ed few  who  have  the  privilege  of  the  entr&e.,  are  always 
admitted  one  by  one.  He  does  not  like  to  have  witnesses 
to  his  conversation.  He  talks  a  great  deal,  and  listens  to 
nothing  but  facts.  When  any  one  calls  upOn  him,  he  in- 
vites them  to  take  a  turn  round  his  garden  with  him,  and 
thus  you  may  see  the  lively  old  gentleman,  his  mind  still 
buoyant  with  thought,  and  with  the  prospect  of  futurity,  in 
eager   conversation    with    some    opposition-member,   some 


468  OK    THE     FORMS    OF    GOVERNMENT.  ;Lect.  IX 

expatriated  patriot,  or  transatlantic  adventurer,  urging  the 
extinction  of  close  boroughs,  or  planning  a  code  of  laws  for 
some  'lone  island  in  the  watery  waste,'  his   walk  almost 
amounting  to  a  run,  his  tongue  keeping  pace  with  it  in 
shrill,  cluttering  accents,  negligent  of  his  person,  his  dress, 
and  his  manner,  intent  only  on  his  grand  theme,  Utility; 
or  pausing,   perhaps,  for  want  of  breath,   and   with   lack- 
lustre eye,  to  point  out  to  the  stranger  a  stone  in  the  wall 
at  the  end  of  his  garden,  'Inscribed  to  the  Prince  of  Poets/ 
which  marks  the  house  where  Milton  formerly  lived,  &c.' 
The  author  then  proceed::   'There  is  something  not  altoge- 
ther dissimilar  between  Mr  Bentham's  appearance,  and  the 
portraits  of  Milton;  the  same  silvery  tone,  a  few  dishevel- 
led hairs,  a  peevish  yet  puritanical  expression,  an  irritable 
temperament,  corrected   by  habit   and   discipline.      Or,  in 
modern    times,   he   is    something    between    Franklin   and 
Charles    Fox,  with  the  comfortable  double  chin,  and  sleek 
thriving  look  of  the  one,  and  the  quivering  lip,  the  restless 
eye,  and   animated   acuteness  of  the   other.      His  eye   is 
quick  and  lively;   but   it  glances  not  from  object  to  object, 
but  from  thought  to  thought.      He  is  evidently  a  man  occu- 
pied with  some   train  of  fine  and  inward  association.      He 
regards  the  people  about  him   no  more  than  the  flies  of  a 
summer.      He  meditates  the  coming  age.      He  hears  and 
sees  only  what  suits  his  purpose,  or  some  'foregone  con- 
clusion;' and  looks  out  for  facts  and  passing  occurrences, 
in  order  to  put  them  into  his  logical  machinery,  and   grind 
them  into  the  dust  and   powder  of  some  subtle  theory,  as 
the  miller  looks  out  for  grist  to  his  mill.     Add  to  this  phy- 
siognomical sketch  the  minor  points  of  costume,  the  open 
shirt  collar,  the  single-breasted  coat,  the  old  fashioned  half- 
boots,  and  ribbed  stockings;  and  you  will  find  in  Mr  Ben- 
tham's  general  appearance,  a  singular   mixture  of  boyish 
simplicity,  and  of  the   venerableness  of  age.      In    a  word, 
our  celebrated  jurist  presents  a  striking  illustration  of  the 


Lect.  IX.j  OF    THE     FORMS    OF    GOVERNMENT.  469 

difference  between  the  philosophical  and  the  regal  look; 
that  is,  between  the  merely  abstracted,  and  the  merely  per- 
sonal. There  is  a  lack-a-daisical  bonhommie  about  his 
whole  aspect,  none  of  the  fierceness  of  pride  or  power; 
an  unconscious  neglect  of  his  own  person,  instead  of  a 
stately  assumption  of  superiority;  a  good-humoured,  pla- 
cid intelligence,  instead  of  a  lynx-eyed  watchfulness,  as  if 
it  wished  to  make  others  its  prey,  or  was  afraid  they  might 
turn  and  rend  him.  He  is  a  beneficent  spirit,  prying  into 
the  universe,  not  lording  it  over  it;  a  thoughtful  spectator 
of  the  scenes  of  life,  or  ruminator  on  the  fate  of  mankind, 
not  a  painted  pageant,  a  stupid  idol  set  up  on  its  pedestal 
of  pride,  for  men  to  fall  down  and  worship  with  idiot  fear, 
and  wonder  at  the  thing  themselves  have  made,  and  which, 
without  that  fear  and  wonder,  would  in  itself  be  nothing. ' 
The  foregoing  graphic  description  has  perhaps  a  little 
too  much  colouring;  but,  on  the  whole,  it  is  no  doubt  a 
faithful  portrait.  It  is  extremely  natural  to  take  a  lively 
interest  even  in  the  personal  appearance  and  domestic 
manners  of  one  who  has  been  so  long  and  so  much  spoken 
of  as  the  philanthropic  and  learned,  the  highly  talented 
and  eccentric  Mr  Bentham.  The  length  of  the  foregoing 
extract  will  therefore  be  pardoned. 

13th.  Of  Napoleon.  The  emperor  of  the  French  seems 
destined  to  attract  the  wonder  of  mankind,  in  whatever 
aspect  he  be  regarded.  It  seems  a  little  irreconcileable  to 
those  political  prejudices  which  our  relations  to  -France 
during  his  reign  have  engendered  in  some  Americans,  to 
view  as  the  modern  Justinian,  a  man  long  odious  to  us  by 
numerous  infractions  of  the  conceived  law  of  nations.  He 
claims  the  title  of  legislator,  however,  with  more  reason 
than  Justinian  himself,  since  the  code  which  bears  his 
name  was  not  only  his  project,  but,  in  fact,  the  subject  of 
his  own  consideration  and  patient  revision,  and  owes  to 
him   many   of  its    most   liberal   and   judicious    principles. 


470  OF    THE    FORMS    OF    GOVERNMENT.  [Lect    IX 

The  Code  Napoleon  is  destined,  we  think,  to  bear  him  far 
beyond  those  conquerors  to  whom  his  unsurpassed  milita- 
ry genius  had  already  more  than  equalled  him;  and  infi- 
nitely beyond  those  narrow-minded  cotemporary  princes 
who  have  stigmatized  him  as  only  a  military  adventurer, 
and  a  daring  usurper.  In  the  natural  progress  of  events, 
they  must  become  wholly  insignificant  to  posterity,  and 
will  be  known  only  in  connexion  with  a  man  whose  monu- 
ments in  morals  and  the  arts  will  be  perpetually  present  to 
the  eye  of  all  future  ages;  whilst  he  will  stand  in  the  view 
of  the  philosophical  historian,  and  all  enlightened  politi- 
cians, as  a  genius  of  the  sublimest  order,  a  soldier,  a  states- 
man and  a  lawgiver;  not  without  great  faults,  yet  more 
free  from  gross  vice  than  perhaps  any  other  prince  pos- 
sessed of  unlimited  power,  and  who  stood  at  the  head,  not 
only  of  militarj',  but  of  all  civil  and  political  rule.  His 
instrumentality  in  the  formation  of  the  code  which,  by 
eminence,  bears  his  name,  ( The  Code  Civile)  and  the  four 
other  codes,  viz.  Code  de  Procedure  Civile,  Code  Penal, 
Coded' Instruction  Crimivelle, and  the  Code  de  Commerce, 
was  immediate  and  active.  The  original  draft  of  the  civil 
code,  prepared  by  the  commissioners  appointed  for  that 
purpose,  was  reported  by  them  in  1801,  during  the  consu- 
late of  Napoleon,  to  the  court  of  cassation  or  errours,  and, 
after  their  suggestions  were  made,  passed  to  the  review  of 
the  council  of  state.  In  this  last  body  the  first  consul  pre- 
sided; and  in  it  every  part  of  the  proposed  code  was  dis- 
cussed. It  was  then  presented  to  the  'tribunate,  where  it 
underwent  another  discussion,  and  was  then  returned  to 
the  council  of  state.  Thus  were  the  five  codes  prepared 
and  elaborated,  and  it  appears  from  the  debates  in  the  coun- 
cil, that  the  future  emperor  partook  largely  and  prominent- 
ly in  them,  suggesting,  altering  and  amending  with  much 
care  and  anxiety.  These  facts  demonstrate  the  versatility 
and    magnificence  of  his  powers,  and   justify  his  pride   in 


Lect    IX  OF    THE     FORMS    OF    GOVERNMENT.  471 

the  creation  of  this  New  Code  of  the  Empire.  It  appears 
from  many  passages  in  O'Meara  and  Las  Cases,  that  he 
viewed  this  enterprise  with  great  complacency;  and  But- 
ler observes  in  his  Reminiscences,  that  a  friend  of  his  had 
heard  Napoleon  say  that  he  wished  to  be  buried  with  his 
code  in  his  hand.  Doubtless  he  will  live  in  the  minds  of 
posterity  as  long  as  the  work  remains  in  their  hands;  and 
whilst  his  military  achievements  must  command  the  won- 
der of  future  times,  his  extraordinary  ability  in  civil  rule, 
and  his  unwearied  attention  to  the  minutest  details  of  go- 
vernment and  law,  will  be  regarded  as  the  brightest  trait 
in  his  history. 

We  have  been  thus  particular  because  it  is,  we  believe, 
a  very  common  impression  that  Napoleon's  only  agency 
in  the  work,  was  ordering  it  to  be  composed  by  jurists 
of  his  nation,  and  giving  it  his  signature  when  com- 
pleted. 

Such  is  the  brevity  of  these  codes,  that  sometimes  the 
whole  five  are  seen  printed  in  one  duodecimo  volume. 
The  Code  Civile  is  comprised  in  2281  paragraphs,  each 
about  as  long  as  a  Bible  verse.  This  is  the  instrument 
which  regulates  the  tribunals  of  a  populous  and  enlighten- 
ed kingdom,  and  with  effect  and  advantage;  and  such  is 
one  of  the  benefits  for  which  mankind  is  indebted  to  the 
emperor  of  the  French. 

But  a  very  important  and  interesting  part  of  this  great 
work,  are  the  discourses  of  the  councillors  of  state,  called 
Motives  of  the  Cedes  of  the  Empire.  These  contain  a  suc- 
cinct and  luminous  discussion  of  the  various  principles  and 
provisions  of  each  code:  they  are  a  commentary  upon  the 
history  and  philosophy  of  many  of  the  laws,  and  manifest 
the  learning,  ability  and  zeal  of  those  enlightened  men  to 
whom  this  great  task  was  assigned.  Most,  if  not  all  of  the 
Codes  and  Motives,  have  been  translated.  The  Code  de 
Commerce,  and  its  Motives  have  been   translated  by  Mr 


472  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

Rodman,  with  great  ability.  It  has  also  been  translated, 
(as  well  as  the  Penal  Code)  by  Mr.  Duponceau,  a  civilian 
of  our  own  country,  of  distinguished  talents  and  learning: 
both  of  these  are  to  be  found  in  the  second  volume  of  Mr 
Walsh's  American  Review. 

We  have  now  brought  to  a  close  our  brief  examination 
of  the  works  and  lives  of  some  of  the  most  distinguished 
among  the  ancients  and  moderns,  who  have  contributed  to 
enlarge  and  illustrate  the  important  science  of  political 
government.  This  short  notice  of  their  opinions,  their 
productions,  and  their  lives,  may  serve  to  stimulate  the 
young  inquirer  after  knowledge  to  deeper  researches. 
We  have  aimed  merely  to  facilitate  his  labours  by  desig- 
nating for  him  the  paths  he  should  pursue. 

We  now  proceed,  according  to  our  plan,  to  the  remaining 
topics  of  the  present  lecture. 
(4.)  A  further  di-       We  have  stated  many  divisions  of  the 

«l,:X™:  f°rmS  °f  ff™™»»t  among  the  ancient, 
posed  classification  and  moderns,  as  they  have  been  display- 
of  all  forms.  ed  by  their  iegislators,  and  their  philoso- 

phical writers.  We  have  seen  that  Machiavel  and  Montes- 
quieu make  very  simple  divisions,  the  first,  into  principali- 
ties (or  monarchies)  and  republics;  the  second,  into  des- 
potisms, monarchies  and  republics.  Neither  of  them,  we 
think,  answers  the  purposes  of  classification:  that  of  Ma- 
chiavel is  not  sufficiently  comprehensive,  and  Montesquieu's 
is  doubly  defective,  as  it  neither  distinguishes  polities  ac- 
cording to  the  distribution  of  their  powers  into  few  or 
many  hands,  nor,  while  it  mentions  one  corruption,  does 
it  mention  all.  According  to  the  first  principle,  he  should 
have  included  aristocracy  in  his  arrangement,  and  have 
omitted  despotism,  or,  adopting  the  second,  he  should  have 
noticed,  as  the  ancients  did,  oligarchy  and  ochlocracy,  as 
well  as  despotism.  Montesquieu  does  indeed  subdivide 
republics  into  democratic  and  aristocratic;,  but  an  aristo- 


Lect.  IX.]  OF    THE     FORMS    OF^GOVEKKMENT.  473 

cracy,  considered  as  an  elementary  form,  diners  little  from 
a  monarchy,  and  if  it  be  an  aristocratic  republic,  it  can 
scarce  be  conceived  of  as  a  simple  form. 

If  classification  be  useful,  it  should  be  based  on  such 
principles  as  will  refer  every  conceivable  form  to  its  pro- 
per head.  We  propose,  then,  to  rank  all  known  or  con- 
ceivable forms  of  government  under  the  following  heads. 

I.   Pure  and  Simple,  viz. 

1.  Theocracy. 

2.  Patriarchy. 

3.  Simple  Monarchy. 

4.  Simple  Aristocracy. 

5.  Simple  Democracy. 

II.  Pure  and  Mixed,  viz. 

1.  Monarchy  combined  with  aristocracy. 

2.  Monarchy  combined  with  democracy. 

3.  Aristocracy  combined  with  democracy. 

4.  Monarchy,  aristocracy  and  democracy  combined. 

5.  Quasi  mixed  Republic,  or  quasi  mixed  Democracy,  in 
which  the  various  principles  rather  than  the  governments 
are  combined. 

III.  Corrupt  and  Simple,  viz. 

1.  Despotism  or  tyranny. 

2.  Oligarchy. 

3.  Ochlocracy. 

IV.  Corrupt  and  Mixed. 

{fcj°  Either  of  these  governments  may  be 

1.  Single. 

2.  Confederate. 

We  shall  not  dwell  with  much  particularity  on  the  fore- 
going division,,  in  which  there  is  nothing  really  new,  or 
which  requires  illustration  by  historical  or  other  examples. 
It  will  be  proper,  however,  to  say  something  in  vindica- 
tion of  it,  and  to  explain  what  is  meant  by  some  of  the 
terms  used. 
60 


474  OF    THE     FORMg  OF    GOVERNMENT.  [Led.  IX 

To  the  first  five  forms  are  attributed  purity  and  simpli- 
city.   By  pure  we  mean  that  the  sovereign  power  is  exer- 
cised mainly  or  entirely  for  the  happiness  and  glory  of  the 
governed;  and  by  simple  we  mean  that  this  power  resides 
in  only  one  functionary  or  depositary,  though  perhaps  in 
more  than  one  individual.     In  our  second  cardinal  division 
we  find  the  same  purity  in  the  forms;   but  they  are  mixed, 
that  is,  they  are  constituted  of  two  or  more  of  the  simple 
forms    of   government,   variously   combined.       Thus,    the 
sovereign  power  may  be  lodged  in  an  individual,  with  high 
and   special   prerogatives,  and   also  in   a   council  or   other 
body,  selected  for  their  wisdom,  birth,  property,  valour, 
piety,  or  other  eminent  qualities.      This  is  a  combination 
of  a  monarchy  and  an  aristocracy.      It  is  obvious  that  this 
mixed  form  may  itself  be  so  variously  modified  as  to  ap- 
proximate very  closely  to  monarchy,  aristocracy  or  demo- 
cracy, according  to  the  preponderance  given  to  either  of  the 
two  constituent  parts;   for  if  the  aristocratic  branch  be  nu- 
merous, and  be  chosen  by  the  people,  or  by  themselves, 
the  government  will  be  more  democratic  than  where  that 
branch  is  small  in  number,  hereditary,  or  selected  by  the 
monarch.      The  second  form  of  mixed  government  is  that 
of  monarchy  and  democracy.     This  is  a  form  little  likely 
to  occur,  since  the  power  of  the  crown  can  scarce  be  main- 
tained against  the  encroachments   of    the  people.      It  is, 
however,  not  only  a  possible  form,  but  one  which  has  ex- 
isted.     So,  thirdly,  an  aristocracy  may  be  combined  with  a 
democracy.      Certain  prerogative  or  transcendental  rights 
and  powers  may  be  vested  in  a  few,  that  is,  in  an  aristo- 
cracy, whilst  the  people  are  permitted  to  enjoy  many  im- 
portant powers.      The  fourth  combination   is  said  to  be  il- 
lustrated  by   the  British  constitution,  in  which  the   three 
simple  and  pure  forms  of  government  are  so  united  that 
each  may  act  in  its  appropriate  sphere,  giving  efficiency  to 


l.ect.  IX. ]  OF    THE    FORMS    Of    GOVERNMENT.  '175 

all,  whilst  each  is  kepi  within  its  prescribed  limits  by  the 
vigilance  of  the  others. 

The  last  form  of  mixed  government  we  have  enumerated, 
requires  a  little  more  explanation,  as  it  is  exemplified  by 
our  own  government,  and  should  be,  as  it  easily  is,  distin- 
guished from  the  preceding,  in  which  the  three  simple  go- 
vernments  are  themselves  combined,    while    in    ours   the 
combination  is  merely  of  some  of  the  principles  of  those 
three   simple   forms.      In    the   American    constitution,   the 
powers  of  monarchy,  aristocracy  and  democracy  may  be 
said  to  be  virtually  exercised,  and  yet  we  have   no  mo- 
narch, no  aristocratic  functionaries,  nor  do  the  people,  in 
proper  person,  exercise  any  governmental  power.      This, 
perhaps,  would   be  unnecessary,  as  far  as  the  word  demo- 
cracy  is   concerned;  for   by   a  democracy   we  may   mean 
either  the  actual  exercise  by  the  people  of  legislative,  ju- 
dicial or  executive   powers,  or  simply   that  these  powers 
are   all   derived  from,  and  dependant  on,  the  will  of  the 
people,  but  are  exercised  by  their  functionaries.     In  order 
to  get  rid  of  this  ambiguity,  or  twofold  signification,  some 
have  been  inclined  to  restrict  the  word  democracy  to  the 
case  of  an  actual  exercise  of  these  powers  by  the  people, 
and  the  word  republic  to  the  exercise  of  like  powers  by 
the  chosen  functionaries  of  the  people.     Montesquieu,  how- 
ever, uses  the  word  republic  rather  differently;  he  applies 
it  to  all  cases  of  pure  government  exercised  by  more  than 
one.      If  the  sovereignty  resides  in  the  body  of  the  people, 
he  calls  it  a  democratic  republic,  or  simply  a  democracy;  but 
if  that  power  be  lodged  in  the  hands  of  a  part  of  the  peo- 
ple, whether  by  right  of  birth,  or  election,  he  calls  it  an 
aristocratic  republic,  or  simply  an  aristocracy.      The  word 
republic  is  ever  associated  with  the  idea  of  a  government 
so  far  free,  that  the  people  have  at  least  the  eventual  means 
of  guarding  against  oppression.      In  common  use,  the  word 
is  certainly  considered  as  nearly  or  quite  synonymous  with 


476  Or    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX. 

democracy;  and  this  latter  word  itself  is  understood  to 
mean  a  government  of  the  people,  exercised  by  their  func- 
tionaries. There  being,  then,  a  manifest  difference  be- 
tween those  forms  of  mixed  governments  of  which  wo 
have  spoken,  viz.  where  the  combination  consists  of  an 
actual  union  of  the  very  governments  themselves,  and  our 
own  mixed  government,  in  which  the  mixture  is  of  some 
of  the  principles  of  the  simple  forms,  it  appears  to  be  not 
only  necessary  to  bear  in  mind  this  distinction,  but  also  to 
designate  such  a  mixed  government  as  ours,  by  some  spe- 
cial or  appropriate  name.  Under  the  British  constitution 
there  is  a  king,  lords  and  commons;  there  is  a  union  of 
monarchy,  aristocracy,  and  one  kind  of  democracy.  We 
have  a  president,  secretaries,  senate,  and  house  of  repre- 
sentatives, which  in  some  degree  correspond  to  the  three 
elements  of  the  British  government.  In  England,  the 
sovereign  power  resides  in  the  three  public  functionaries 
we  have  mentioned:  in  the  American  government,  it  is 
said  to  reside  only  in  the  people.  The  president  is  not  a 
monarch,  nor  are  the  secretaries  and  senators  aristocratic 
bodies;  yet.  the  president  is  in  a  great  degree  directed  in 
the  exercise  of  his  powers,  by  the  principles  which  desig- 
nate a  monarch,  and  his  powers  are  mostly  those  which 
characterize  a  monarch.  So,  the  secretaries  and  senators 
have  some  features  in  common  with  aristocratic  bodies. 
Shall  our  government,  then,  come  under  the  fourth  division 
of  the  second  head,  viz.  of  'Pure  and  Mixed  Government/ 
combined  of  monarchy,  aristocracy  and  democracy;  or 
shall  a  new  class,  and  an  appropriate  name,  be  selected  for 
it,  so  as  to  convey  the  idea  that  it  is  called  mixed  merely 
from  its  approaching  in  its  elements  or  principles  the 
mixed  form  we  have  just  mentioned  as  exemplified  by  the 
British  government?  Or,  on  the  other  hand,  as  it  is  not  a 
mixture  of  the  actual  simple  forms,  but  of  some  of  their 
principles,  shall  our  government  be  ranked  with  Simple  go- 


Lect    IX.]  OF    THE    FORMS    OF    GOVERNMENT.  477 

vernments,  on  the  plea  that,  as  all  sovereignty  resides  in 
the  people,  and  is  merely  exercised  by  their  functionaries,  it 
must  be  simple,  and  comes  therefore  under  the  last  head  of 
the  first  division  of  our  classification.  A  reply  to  these 
questions  is  perhaps  of  no  very  great  moment;  it  cannot 
be  made,  however,  until  we  ascertain  precisely  what  is 
meant  by  a  simple  government.  If  by  a  simple  govern- 
ment we  mean  nothing  more  than  that  the  ultimate  sove- 
reignty resides  no  where  but  in  the  body  of  the  people, 
and  that  the  exercise  of  delegated  powers  by  their  function- 
aries in  no  degree  impairs  the  sovereignty,  then  must  our 
government  be  classed  under  the  head  of  simple;  and 
though  the  agents  of  the  people  are  so  variously  consti- 
tuted as  to  exercise,  in  a  considerable  degree,  the  three 
classes  of  powers  which  seem  to  characterize  all  the  three 
simple  forms,  yet  must  the  government  still  be  simple,  and 
not  mixed.  So,  again,  if  by  the  word  mixed  we  mean 
that  the  three,  or  any  two  of  the  elementary  or  simple  go- 
vernments are  themselves  combined,  then  must  our  go- 
vernment still  be  simple,  since  we  have  neither  monarchy 
nor  aristocracy.  If,  on  the  other  hand,  a  government  is  to 
be  considered  as  simple  or  mixed,  according  as  its  ordinary 
powers  are  actually  administered  by  one  or  more  bodies, 
without  reference  to  the  residence  of  its  ultimate  sovereign- 
ty, then  is  our  government  a  mixed  one,  because  the  go- 
vernmental powers  are  partitioned  out,  and  lodged  in  distinct 
and  independent  bodies,  although  the  sovereignty  remains 
with  the  people,  from  whom  all  power  originally  flowed,  and 
continues  to  flow.  Hence,  a  government  may  be  a  mixed 
one  in  two  ways;  first,  where  the  combination  consists  of 
two  or  more  of  the  simple  governments  themselves;  or 
secondly,  where  the  general  characters,  and  leading  prin- 
ciples of  two  or  more  of  these  simple  governments  are 
united  in  several  bodies.  The  first  of  these  mixed  go- 
vernments is  exemplified  by  Great  Britain,  by  most  of  the 


478  :  HE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

European  governments,  and  indeed  by  nearly  all  the  pure 
governments  which  have  ever  existed.  The  second  kind 
of  mixed  government  is  exemplified  by  our  own  constitu- 
tion, which  is  a  combination  of  principles  characteristic 
of  the  three  simple  forms,  and  so  disposed  of  in  various 
organs,  as  to  create  the  same  responsibilities,  checks  and 
balances  which  we  find  in  a  combination  of  monarchy, 
aristocracy  and  democracy,  though  we  have  in  reality  nei- 
ther the  one  nor  the  other. 

If  this  view  of  the  subject  be  correct,  there  should  be  a 
name  or  expression  introduced  to  distinguish  these  two 
distinct  classes  of  mixed  governments  from  each  other; 
and  there  should  also  be  some  appropriate  name  given  to 
such  mixed  governments  as  are  composed  of  the  simple 
forms,  according  as  the  one  or  the  other  preponderates,  so 
that  the  three  combinations  of  the  simple  governments 
might  each  be  known  by  an  appropriate  name.  Thus,  for 
example,  the  British  government  might  be  called  a  mixed 
monarchy,  taking  its  name  from  its  preponderating  feature. 
The  government  of  Venice,  during  most  of  the  time  of  the 
doges,  might  be  denominated  a  mixed  aristocracy;  and  the 
government  of  Rome,  under  the  consuls,  and  particularly 
after  the  establishment  of  the  tribunes  &c.  and  that  of 
Athens,  particularly  under  the  annual  archons,  would  ex- 
emplify a  mixed  democracy. 

In  order  to  distinguish  this  sort  of  mixed  governments 
from  those  in  which  the  mixture  consists  of  various  prin- 
ciples of  each,  the  same  phraseology  may  be  retained,  with 
the  addition,  however,  of  the  adjunct  quasi,  if  this  be  not 
too  unusual  or  pedantic.  Thus,  our  government  might  be 
called  a  quasi  mixed  democracy;  the  first  word  to  denote 
that  the  combination  differs  from  that  which  is  ordinary, 
viz.  of  certain  principles  instead  of  the  governments  them- 
selves; the  second  word  to  denote  the  fact  of  its  compound 
character;    and  the  last  to  indicate  that  the  predominant 


Lect.  IX.  OF    THE     FORMS    OF     GOVERNMENT.  479 

feature  in  our  polity  is  democracy.  Or,  as  the  word  re- 
public is  with  many  a  more  favourite  word,  and  is  often 
understood  to  mean  that  the  people  govern  by  their  dele- 
gates, our  government  might  be  called  a  quasi  mixed  re- 
public. If  a  government  in  its  organization  should  have 
these  principles  so  combined  that  monarchical  or  aristo- 
cratic features  should  be  the  most  prominent,  it  would  then 
be  called  quasi  mixed  monarchy,  or  quasi  mixed  aristo- 
cracy. 

We  have  said  more  than  was  perhaps  necessary,  in  ex- 
planation of  the  first  and  second  of  our  cardinal  divisions 
of  government.      In  the  third,  we  have  designated  govern- 
ments as  corrupt  and  simple,  viz.  despotism,  oligarchy  and 
ochlocracy:   and   in  the   fourth  cardinal  division  are  to  be 
found  such  governments,  if  any,  as  are  corrupt  and  mixed; 
these  we  shall  consider   together.      A   mixed   government 
can  scarcely  become  corrupt,  in  the  strong  sense  in  which 
we  use  the  word,  since  the  very  mixture   creates  such  a 
system  of  checks  and  balances  as  will  be  extremely  apt 
to   exclude   that    corruption  which   generates   tyranny  on 
the  one   hand,  or  anarchy  on   the  other.     Those  govern- 
ments, it  will  be  found,  which  are  the  most  simple  in  their 
structure,  have  been  the  most  exposed  to  degeneracy  and 
corruption.   So,  also,  those  which  are  pure,  are  generally  the 
most  permanent  in  proportion  to  their  just  admixture  of  the 
primary  forms  of  government.     To  place  political  rule  in 
the  hands  of  a   single  person,  has  been  the  most  general 
resort  of  communities  desirous  of  order,  and  the  quiet  en- 
joyment of  their   property.      This  simple   polity  requires 
no  contrivance,  no  balances  of  the  different   powers  of  the 
state  against  each  other,  in  order  to  restrain  each  from  en- 
croachment.     It  was  natural,  too,  to  small  communities,  in 
which   the  talents  of  an  individual  would  be  likely  to  be 
most  conspicuous;  and  it  was   generally  better  adapted  to 
their  rude  and  warlike  habits.      Hence  it  is  not  surprising 


480  OF    THE    FORMS    OF    GOVERNMENT.  [Lect.  IX 

that  it  should  have  prevailed  so  completely  over  the  other 
forms  of  government.  But  as  it  was  the  most  easy  expe- 
dient of  communities  desirous  of  police,  so  it  has  always 
been  the  most  liable  to  abuse.  Power  can  hardly  be  en- 
trusted to  a  single  man,  and  not  be  wantonly  used  to  the 
oppression,  instead  of  the  protection  of  the  state;  and 
hence  it  has  almost  uniformly  degenerated  into  despotism 
or  tyranny.  It  is  fortunate,  however,  for  mankind,  that 
even  in  the  most  absolute  monarchies,  certain  limits  are  es- 
tablished by  long  custom,  common  understanding,  religion 
&c.  to  which  the  worst  princes  are  under  some  obligation 
to  conform,  because  the  people  in  extremities,  after  having 
endured  much  within  the  ample  range  of  despotic  power, 
will  be  sure  to  rise  and  revenge  the  transgression  of  what 
is  manifestly  theirs  by  the  guarantees  just  mentioned.  In 
the  mild  monarchies  of  Europe,  and  even  in  those  which 
amble  on  the  confines  of  d'espotism,  there  has  always  been 
some  form  of  constitutional  restraint.  Thus,  the  edicts  of 
the  French  monarch  were  to  be  registered  by  the  parlia- 
ment, before  they  had  the  character  of  laws;  and  we  know 
that  even  this  weak  bulwark  against  absolute  power  was 
repaired  to  on  the  eve  of  the  Revolution.  Another  de- 
fence against  despotic  power,  as  we  have  before  intimated, 
is  the  creation  of  a  nobility.  This  will  appear  extremely 
obvious,  when  we  compare  the  government  of  oriental 
countries,  where  there  is  no  hereditary  nobility,  with  that 
of  Europe,  where  this  class  of  depositories  of  power  is  so 
well  known.  'No  monarch,  no  nobility:  no  nobility,  no 
monarch,'  says  Montesquieu.  Hence  monarchy,  as  a 
simple  form  of  government,  has  been  seldom  known,  it 
being  generally  combined  with  aristocracy;  and  if  not,  it 
soon  becomes  corrupt,  and  takes  the  name  of  despotism. 

Nearly  the  same  remarks  apply  to  aristocracy,  which 
becomes  corrupt,  and  takes  the  name  of  oligarchy,  unless 
it  be  associated  with,  democracy.      Indeed  this  form  of  po- 


Lect-  IX.]  OF    THE     FORMS    OF    GOVERNMENT.  48i 

lity  is  more  liable  to  degeneracy  than  monarchy;  for,  as  Dr 
Priestley  justly  observes,  'as  the  people  have  more  masters, 
they  are  more  liable  to  be  sorely  oppressed.'  The  liberty 
of  the  people  would,  I  grant,  at  first  appear  to  be  more  se- 
cure in  the  hands  of  a  few  than  of  one;  but  it  is  to  be  re- 
membered that  a  monarch  acts  on  his  own  responsibility, 
and  in  conformity  to  the  dictates  of  his  own  mind;  whereas 
an  aristocracy  divide  responsibility,  and  they  corrupt  each 
other.  They  are  often  turbulent  and  distracted  in  their 
counsels;  faction  rises  on  faction;  and  whilst  they  vex  each 
other,  they  often  agree  upon  nothing  but  the  oppression  of 
the  people;  for  this  is  generally  necessary  in  order  to 
enable  these  factions  to  sustain  themselves  against  each 
other.  The  oppression  of  an  aristocracy  is  also  the  more 
galling  to  the  people,  as  they  consider  those  in  power  more 
men  like  themselves,  than  they  are  apt  to  think  a  mo- 
narch, who  is  more  retired  from  their  observation,  and 
therefore  more  venerated.  That  an  aristocracy  is  gene- 
rally a  severe  government,  and  soon  assumes  the  corrupt 
form  called  an  oligarchy,  witness  Venice,  and  also  Athens 
under  the  Thirty.  Witness,  likewise,  those  nations  in 
which  the  nobility  have  succeeded  in  gaining  a  preponde- 
rance over  royalty:  thus  in  Denmark  and  Sweden,  after 
the  nobility  had  triumphed  for  a  time,  their  power  was 
transferred,  with  the  hearty  concurrence  of  the  people,  to 
the  king.  In  fact  an  aristocracy,  which  in  its  primitive 
nature  is  the  rule  of  the  best,  becomes  almost  invariably 
the  despotism  of  a  few;  and  the  people,  instead  of  having 
several  protectors,  have  as  many  tyrants. 

Lastly.  A  simple  democracy  is,  next  to  a  pure  monarchy, 
the  easiest  form  of  polity  to  be  fallen  into,  especially  in 
small  states.  Its  advantages  are  equality  of  rights;  free 
scope  to  the  exertion  of  every  man's  talents,  and  equal  re- 
wards to  his  merits;  and  the  adoption  of  general  laws, 
from  which  arise  security,  curiosity,  and  consequently 
61 


482         OF  THE  FORMS  OF  GOVERNMENT.       ;Lcct.  IX 

knowledge.     Were  mankind  just  and  virtuous,  democracy 
would,  in  truth,  be  the  only  natural  government;  we  might 
say,  the  only  lawful  one;  since  all  men  are  bound  to  com- 
bine their  talents  for  the  discovery  of  the  best  means  of 
promoting  the  general  happiness.      That  it  has  not  more 
generally  prevailed,  that  it  has  even  been  pronounced  ab- 
surd  and   impossible,  arises  from   vice   and  corruption   in 
the  people,    from   its  turbulence   and   faction,   and,   above 
all,   from   unwieldiness   in   the  force    of  the    state.      It  is 
too  apt,  in  short,  to  degenerate  into  ochlocracy  or  anar- 
chy.     Thus,   then,  each  of  the   pure  and  simple  govern- 
ments appears  to  have  its  peculiar  infirmities,    a  monar- 
chy degenerating    into    a  despotism,    an    aristocracy    into 
an  oligarchy,  a  democracy  into  anarchy.     Sensible  of  these 
evils,  philosophical  politicians  have  exercised  their  skill  in 
so  combining  the  simple  forms,  that  the  besetting  vice  of 
each  may  be  counteracted  by  some  opposite  quality  of  that 
with   which  it   is  combined.      In   some  constitutions  you 
will  find  the  monarchical  privileges  countervailed  by  as- 
semblages of  the  people,  the  monarch  having  the  execu- 
tive, the  people  the  legislative  power,  with  the  reservation 
of  an   absolute   or  qualified  veto  to   the   sovereign.      The 
fault  of  this  combination  is,  that  the  interests  of  the  two 
come  too  frequently  into  collision,  and  there  is  no  third 
power  to  trim  the  balance,  and  mediate  between  them.      In 
others,  as  in  that  of  ancient  Rome,  the  aristocracy  and  de- 
mocracy were  balanced  against  each  other;  and  with  all  the 
seditions  and  civil  dissensions  of  the  first  seven  hundred 
years    of  the   Eternal    City,    it    was  a  constitution   which 
showed  the  salutary  efficacy  of  these  balances  of  the  civil 
powers,  though  chargeable  with  the  defect  of  too  indefinite 
a   limitation  of  the  scope  and   bounds  of  each.      The  mo- 
dern monarchies  of  Europe,  afford  us  examples  of  the  mix- 
ture of  all  the  three  simple  forms,  and  are  systems  of  go- 
vernment somewhat  different  from  any  that  were  practised 


Lect.   IX.  OF    THE     FORMS    OF     GOVERNMENT.  483 

among  the  ancients.  These  forms,  now  so  common, 
though  they  were  the  production  of  a  kind  of  accident, 
are  better  than  any  that  preceded  them.  History  informs 
you  of  their  origin;  how,  from  their  dispersedness,  the 
conquerors,  originally  entitled  to  vote  every  thing  in  per- 
son, were  obliged  to  send  deputies,  and  hence  the  idea  of 
representation;  how  the  commons,  originally  vile  and  en- 
slaved, grew  wealthy  and  powerful  with  the  augmentation 
of  trade  and  the  arts,  and  then  asserted  their  share  in  the 
great  council  of  the  nation;  and,  lastly,  how  the  privileges 
of  king,  nobles,  clergy  and  people  became  so  tempered  as 
to  check  and  balance  each  other,  and  to  subject  every  pub- 
lic measure  to  repeated  discussion;  so  that  the  vigour  and 
promptitude  of  monarchy  in  war,  might  be  happily  blend- 
ed with  that  security  of  property  and  person,  which  cha- 
racterizes a  republic  in  peace. 

The  success  of  the  European  states  has  indeed  been  va- 
rious in  properly  combining  and  balancing  the  different 
members  of  the  government;  but  that  of  England  has  been 
worthy  of  all  praise,  and  amidst  the  comparative  oppres- 
sion of  neighbouring  countries,  must  not  be  undervalued 
because,  in  a  more  philosophical  age,  and  under  more  aus- 
picious circumstances,  we  ourselves  have  constructed  a  yet 
more  free  and  more  symmetrical  form  of  polity.  It  is  the 
advantage  of  the  federal  republic,  that  while  it  is  large 
enough  to  withstand  external  force,  its  form  prevents  the 
inconvenience  attendant  on  democracies  of  too  great  an 
extent,  viz.  the  unwieldiness  of  popular  assemblies;  the 
difficulty  *)f  preserving  subordination,  and  conserving  local 
interests  throughout  the  whole  body;  and  the  faction  and 
opposition  of  interest  which  almost  invariably  prevail  in 
them.  We  may  apply  the  observation  of  Montesquieu, 
when  speaking  of  confederate  republics,  with  peculiar 
propriety  to  ©ur  own.  'As  this  government  is  composed 
of  petty  republics,  it  enjoys  the  internal  happiness  of  each, 


4S4  OF    THE    FORMS    OF    GOVERNMENT.  [I.ect.  IX 

and  with  respect  to  its  external  situation,  it  is  possessed, 
by  means  of  the  association,  of  all  the  advantages  of  large 
monarchies.'*  Our  constitution  is  certainly  the  com- 
pletest  model  of  this  kind;  and  every  lover  of  mankind 
must  desire  that  it  shall  deserve  this  encomium  from  a  phi- 
losopher such  as  Montesquieu,  and  one  who  wrote  before 
its  existence.  Since,  according  to  Montesquieu,  our  con- 
federation belongs  to  the  only  species  of  government  of 
which  virtue  is  the  principle;  since  the  honour  and  power 
of  monarchies,  the  moderation  of  pure  aristocracies,  and, 
above  all,  the  slavish  fear  of  despotisms,  are  with  us 
supplied  by  a  better  principle;  since  here  the  mind  best 
expands  into  action,  thought  is  liberal,  conduct  free,  pro- 
perty and  person  secure,  and  manners  independent;  we 
have  not  only  good  reason  to  congratulate  ourselves  on  our 
political  scheme,  but  are  bound  by  every  strong  motive  of 
human  life,  to  give  it  permanency.  We  have  made  the  ex- 
periment on  a  vast  scale;  many  millions  of  men  are  deeply 
concerned  in  its  success;  and  all  civilized  nations  are 
watchful  of  the  event,  some  with  the  hope  of  imitating  us, 
and  a  few,  perhaps,  with  the  dread  that  our  success  will 
piove  their  downfall. 

'The  laws,  the  rights, 

The  generous  plan  of  power  deliver'd  down 

From  ojre  to  age,  by  our  renown'd  forefathers, 

So  dearly  bought,  the  price  of  so  much  blood, 

Oh!  let  it  never  perish  in  our  hands.'  ( t>it>. 

'  >•!■  nt.  ?pir.  of  Laws. 


LECTURE  X. 


OP    THE    FEUDAL    LAW. 


Pursuing  our  topics  in  the  order  designated  in  the  syl- 
labus, we  are  now  to  treat  of  the  elementary  and  constitu- 
tional principles  of  the  Municipal  or  Common  Law  of 
England. 

The  present  lecture  will  be  devoted  to  an  inquiry  into 
the  leading  principles,  the  laws,  and  the  institutions  of  the 
feudal  ages,  so  far  as  they  are  in  any  degree  connected 
with  the  system  of  English  jurisprudence. 

It  will  be  perceived  from  the  syllabus  that  the  topics  of 
this  lecture  are  too  numerous  to  admit  of  much  amplifica- 
tion. All  that  can  be  accomplished  consistently  with  our 
general  plan,  is  to  present  an  analytical  view  of  the  sub- 
ject, with  references  to  such  sources  of  information  as  will 
enable  the  student  to  pursue  his  inquiries  with  facility  and 
certainty  into  a  system  which  lies  at  the  very  foundation 
of  his  future  legal  studies. 

Introduction.  The  barbarous  nations  which,  between 

the  fifth  and  seventh  centuries,  invaded  and  occupied  the 
provinces  of  the  Roman  empire,  established  a  form  of  po- 
lity so  different  from  that  of  Rome,  or  indeed  any  other 
which  had  ever  existed,  that  modern  history  is  wholly  un- 
intelligible without  a  knowledge  of  the  systems  which 
they  erected.  Their  scheme  of  jurisprudence,  also,  is 
equally  unexplainable  without  this  knowledge;  and  since 
the  common  law  of  England  is  in  part  the  offspring  of  the 
feudal,  the  consideration  of  the  general  features  of  the  feu- 
dal polity  is  necessary  to  any  clear  and  systematic  inquiry 


486  OP    THE     FEUDAL    LAW  Leot.  X 

either  into  the  learning  of  feuds,  as  it  existed  in  England, 
or  into  that  body  of  law  which  sprang  out  of  it,  and  which 
is  usually  known  as  the  common  law. 

We  deem  this  subject  so  important  to  the  right  under- 
standing of  many  portions  of  the  municipal  law,  that  we 
shall  extend  the  present  lecture  much  beyond  the  usual 
limits,  and  for  the  sake  of  clearness,  shall  divide  it  into 
two  parts.  In  the  first  we  shall  present  a  general  view  of 
the  feudal  system  as  it  subsisted  in  the  various  European 
nations;  reserving  the  second  part  for  a  more  particular 
consideration  of  it  as  it  appeared  in  England,  together 
with  some  references  to  particular  topics  and  questions 
which  are  interesting  to  students  of  the  English  laws  and 
constitution,  though  they  could  not  so  properly  make  a 
part  of  a  general  essay  on  the  feudal  establishments. 

Part  the  Firs 

Occupation  of  the       Division  I.  The  various  tribes  which 

conquered  lands  by  successively  poured  in  upon  the  Roman 

the  barbarians,   and 

their    allotment    a-  conquests,  were  of  so  independent  a  spirit 

mong  the  victors.  that  they  conceived  themselves  not  less 
entitled  than  the  chieftains  who  had  led  them,  to  par- 
ticipate the  acquisitions  which  they  had  made  by  their 
valour.  Whatever  distinction  they  made  in  the  degree  of 
remuneration,  seems  to  have  grown  out  of  their  estimate  of 
the  services  and  conduct  of  their  leaders,  rather  than  to 
have  been  made  in  reference  to  the  regal  character;  and  if 
the  kings  gained  a  larger  share  in  the  conquered  lands,  it 
was  with  a  view  to  their  merit,  and  not  to  their  prero- 
gative. 

(l.)  Of  Allodial  Every  freeman,  therefore,  who  folio w- 
Property.  ec\   h}s   chieftain    to   conquest,    took    his 

share  of  the  territorial  spoil  as  the  fruit  of  his  good  sword; 
and  he  enjoyed  it  discharged  of  every  service,  duty  or 
tribute,  except  that  which  was  required  for  the  safety  of 


Lect.  X.]  OF     THE    FEUDAL    LAW.  487 

the  state,  namely,  military  service,  which  he  paid,  how- 
ever, as  a  freeman,  and  not  as  a  feudatory.  Hence  his  es- 
tate was  called  Allodium,  which  imports  a  certain  share 
falling  to  any  one  by  lot,  from  the  two  German  words  an 
and  lot.  These  lands  were  owned  by  their  several  pro- 
prietors as  their  absolute  property,  free  from  all  tenure, 
and  bound  by  no  duty  even  to  the  king;  for  though  the 
allodial  proprietors,  in  common  with  all  other  subjects, 
owed  allegiance  to  the  sovereign  of  the  state,  it  was  not  in 
respect  of  their  lands. 

These  allotments  of  land  among  the  victors  did  not  re- 
sult in  the  total  expulsion  of  the  Roman  proprietors:  on 
the  contrary,  the  Burgundians  and  the  Visigoths  took  but 
two  thirds  of  their  respective  conquests;  the  Lombards  of 
Italy,  a  third  part  of  the  produce;  the  Vandals  of  Africa, 
all  the  best  lands;  while  the  Franks,  though  we  discover 
no  mention  of  a  particular  apportionment  by  them,  certainly 
held  a  great  part  of  the  lands  of  France. 

(2.)  Of  Benefida  or       But  while  every  free  soldier  would  es- 
Feuda.  teem  himself  entitled  to  a  share  of  his 

conquests,  it  was  natural  that  they  should  reap  the  largest 
rewards  whose  conduct  and  courage  had  been  most  conspi- 
cuous in  achieving  them.  Large  portions  of  land  were 
therefore  assigned  in  the  distribution,  to  the  eminent 
chiefs,  and  a  larger  to  the  king,  both  as  the  most  merito- 
rious soldiers,  and  as  the  chief  repositories  of  responsi- 
bility, and  contrivers  of  the  general  plan  of  conquest;  and 
hence,  also,  was  it  that  the  king,  not  indeed  in  virtue  of 
prerogative,  had  apportioned  to  him  a  very  large  share. 
The  chieftain?  too,  like  the  king,  were  necessarily  influen- 
tial from  their  knowledge  and  talents.  Hence,  the  king 
himself  would  be  most  anxious  to  attach  them  to  his  per- 
son, and  to  secure  their  skill  and  fidelity  in  the  field  or  in 
the  council.  To  this  end  they  received  from  him  dona- 
tions out  of  his  own  extensive  allotment;  and  they  in  turn. 


488  OF    THE    FEUDAL    LAW.  [Lect.  X 

from  similar  motives  towards  their  own  companions,  would 
parcel  out  these  donations,  as  well  as  their  own  proper 
and  original  portions,  amongst  such  suhordinate  freemen. 
Thus  a  freeman,  whether  eminent  or  obscure,  might  hold 
land  acquired  by  two  different  titles:  that  is,  his  own  ori- 
ginal allotment  as  a  member  of  the  community,  which  was 
allodium,  and  another  as  the  gift  of  some  powerful  or 
friendly  superior:  this  last  was  termed  a  Beneficium  or 
Feudum,  the  latter  word  being  compounded  of  feo,  wages 
or  stipend,  and  od,  possession  or  estate;  conjointly  signify- 
ing something  that  is  stipendiary,  or  granted  as  a  recom- 
pense for  services  to  be  rendered.* 

The  allodial  proprietors,  we  have  already  mentioned, 
were  under  no  other  obligation  than  that  which  is  due  by 
all  subjects  to  the  state;  whereas  the  beneficiary  or  feudal 
owners  were  tenants,  subjected  to  various  personal  ser- 
vices, to  be  rendered,  generally  at  stipulated  periods,  to 
their  lords,  and  bound  to  them  by  many  ties  of  the  strict- 
est fidelity.  Allodium,  therefore,  created  the  obligation 
of  allegiance;  feudum  superadded  those  of  fealty,  ho- 
mage &c. 

Whether  Benefida       Division  II.    These  feuda  or  benefi- 

were  ever  grantable  cja   were   originally  granted   only  during 

during  pleasure  only;  . 

and  how  they  became  pleasure;   and  Dr  Robertson  thinks  that 

hereditary.  n0  circumstance  relating  to  the  customs 

of  the  middle  ages  is  better  ascertained  than  this,  t  This 
opinion,  however,  which  indeed  is  that  which  has  been 
held  by  nearly  all  who  have  expressed  any  on  the  subject, 
is  questioned  by  Hallam  in  his  History  of  the  Middle 
Ages,  who  thinks  that  no  satisfactory  proof  has  ever  been 

*  Cragii  Jus  Feudale,  lib.  l,sec.  4.  Hale's  Common  Law,  Runnington's 
ed.  107,  note  (/i).  Coke  Littleton,  64,  note  1.  Steuart's  View  of  Society 
in  Europe,  book  1,  ch.  2,  sec.  1.  1.  Rob.  Char.  V.  1S5.  Squire's  Anglo- 
Saxon  Gov.  2b. 

1  l.  Rob.  ch.  v,  179.     Steuart-  Hisl    D 


Lect.  X.]  OF    THE    FEUDAL    LAW.  489 

brought  of  it,  and  doubts  whether  beneficiary  grants  were 
ever  resumable  at  pleasure,  unless  in  case  of  some  delin- 
quency in  the  vassal.*     Benefices    granted   for   a  term  of 
years,  he  thinks,  may  have  existed,  though  he  is  not  aware 
of  any  documents  which  prove  even  this.      However  this 
may  be,  it  is  certain  that  fiefs  did  not  long  continue  pre- 
carious, or  even  limited  to   the  vassal's  life;   for,  indeed, 
under  the  first  race  of  French  kings,  which  ended  about 
the  year  680,  both  the  laws  and  the  precedents  of  forms 
would  seem  to  prove  that  they  had  already  in   many  cases 
become  hereditary.     Nothing,  we  think,  was  more  natural 
than    this    perpetuity    of    estates.       The    motives   which 
prompted  favours  to  a  meritorious  and   useful  chief,  would 
be  strengthened   by  compassion  for  his  offspring;  and   the 
weakness  of  the  royal  authority  would  often  suffer  what 
neither  of  these  principles  might  have  inclined  it  to  bestow. 
We  have  made  use  of  the  words  benejicium  and  feudum 
as  synonymous;  but  this  in  strictness  is  not  correct.     The 
word  feudum  is  indeed  often  used,  in  an  enlarged  sense, 
to  import  any  species  of  feudal  estate,  without  reference 
either  to  its  precarious  or  its  fixed   nature,  or  to  its  being 
granted   at  will,  for  years,  for  life,  or   as  an   inheritance. 
There  can  be  no  doubt,  however,  that  there  were  distinct 
names  appropriated  to  these  various  kinds   of  grant,  and 
they  distinguish  the  progress  of  the  feudal  law,  in  regard  to 
the  tenant's  estate  in  the  land.     Thus,  when  these  estates 
were  altogether  precarious,  or  dependent  on  the  lord's  will, 
they  had  the  name  of  munera;   if  granted  for  years,  they 
took  the   name  of  terms;   and   when  for  life,   they  were 
called  benefieia.      This  was  their  state  generally  from  the 
seventh  to  the  tenth  century,  at  which  time  the  perpetuity  of 
these  estates  was  fully  established,  and   they  then  assumed 
the  name  of  feuda. 

i  Mall.  Mid.  Ages,  l«* 

h2 


490  OF    THE    FEUDAL    LAW  [Lect.  X 

A  benefice,  therefore,  strictly  means  an  estate  for  life 
held  by  a  tenant  of  his  feudal  lord;  and  a  feud  imports  a 
like  estate  held  in  perpetuity.  Both  feuds  and  benefices 
were  further  divided  into  Proper  and  Improper,  which  de- 
nomination they  took  from  some  circumstance  that  distin- 
guished them  from  those  generally  granted. 

A  proper  benefice  was  an  estate  in  lands  granted  to  a 
man  during  life,  and  held  by  fealty,  and  some  uncertain 
military  service.  Improper  benefices,  consequently,  were 
estates  in  any  other  things  than  land,  or,  if  land,  held  in  any 
other  manner  than  is  indicated  by  the  foregoing  definition 
of  a  proper  benefice.  The  improper  benefices  may  be 
thus  classed. 

1.  When  lands  were  granted  to  the  church.  In  this 
case,  the  services  not  being  military,  and  the  estate  not 
being  for  life,  as  it  endured  forever,  the  church  being  per- 
petual, the  estate  was  denominated  an  improper  benefice; 
and  if  its  perpetuity  would  class  it  with  feuds,  it  would 
still  be  an  improper  one,  as  the  services  were  not  mili- 
tary. 

2.  Where  the  tenant  was  expressly  permitted  to  take 
possession  of  the  estate  without  actually  taking  the  oath  of 
fealty.  Here,  though  the  tenant  could  do  nothing  against 
the  ordinary  requisitions  of  the  oath,  yet  he  could  not  be 
compelled  to  take  the  oath,  unless  when  the  investiture 
had  been  merely  silent,  as  to  the  oath  of  fealty. 

3.  If  the  estate  might  endure  longer  than  the  tenant's 
life,  or  for  a  shorter  period,  the  benefice  was  then  also  an 
improper  one.  As  if  land  were  granted  to  A  and  B,  and 
the  survivor  of  them,  here  the  survivor  was  supposed  to 
hold  the  land,  not  only  during  his  own  life,  but  also  during 
the  life  of  the  other;  a  principle  wholly  at  variance  with 
the  subsequent  and  present  doctrine  of  the  common  law, 
which  is,  that  every  man's  own  life  is,  in  the  contempla- 
tion of  law,  a  greater  estate  than  any  number  of  lives  then 


Lett.  X.]  OP    THE    FEUDAL    LAW.  491 

in  existence.  On  this  principle,  the  benefice  stated  in  the 
foregoing  example  would  be  a  proper  benefice,  since  the 
survivor  had  nothing  more  than  an  estate  during  his  own 
life.  So,  again,  if  the  life  estate  might  by  any  possibility 
terminate  short  of  its  expiry  by  efflux  of  time,  it  was  an 
improper  benefice;  as  if  an  estate  for  life  were  granted  to 
A,  to  be  defeated  by  any  condition,  or  by  the  happening  of 
any  event. 

4.  If  any  certain  services,  military  or  otherwise,  were 
reserved,  the  benefice  was  an  improper  one. 

5.  If  no  military  service  were  reserved,  but  some  rent, 
it  was  an  improper  benefice;  hence  all  soccage  estates  were 
improper  benefices. 

6.  If  no  services  whatever,  except  fealty,  were  reserved. 

7.  Estates  held  by  grand  or  petty  serjeantry  (the  for- 
mer being  referrible  to  knight's  service,  the  latter  to  soc- 
cage tenure,)  were  also  improper  benefices,  as  the  services 
were  in  both  cases  certain. 

8.  All  grants  to  females,  though  the  services  reserved 
were  military  and  uncertain,  were  still  classed  under  this 
head,  since  the  services  were  to  be  performed  by  deputy, 
and  it  was  essential  to  a  proper  benefice,  and  a  proper  feud, 
that  the  services  should  be  personal. 

9.  Finally,  all  things  whatever  which  are  from  their  na- 
ture transferrible  by  grant  or  contract  only,  and  not  by  li- 
very of  seisin,  were  held  only  as  improper  benefices  or  feuds. 
Such  things  were  said  to  lie  in  grant,  in  contradistinction 
to  all  those  which  are  embraced  under  the  legal  notion  of 
land,  and  which  are  said  to  lie  in  livery. 

The  foregoing  remarks  on  improper  benefices,  and  the 
criterions  by  which  they  are  distinguished  from  proper  be- 
nefices, equally  apply  to  the  distinction  between  proper 
and  improper  feuds;  a  proper  feud  being  what  a  proper  be- 
nefice is,  except  that  the  latter  is  an  estate  for  life,  and  the 
former  an  estate  in  perpetuity. 


4!>2  OF    TH£    FEUDAL    LAW.  [Lect    \ 

_  .    .„'       .        Division  III.      But  it  was  not  only  the 

How    Counts    and 

Dukes  made  their  beneficiary  estates,  but  the  great  offices, 
offices  hereditary.        which    thus    change(i    their   nature,   and 

from  being  granted  for  life,  or  during  good  behaviour, 
became  hereditary  in  the  families  of  the  original  grantees. 
The  kingdom  of  Clovis  was  divided  into  a  number  of  dis- 
tricts, each  of  them  under  the  administration  of  a  Count 
(the  Comes  of  the  Romans,  the  Graf  of  the  Germans) 
whose  duty  was  the  preservation  of  public  order,  the  ad- 
ministration of  justice,  the  collection  of  the  revenues,  and 
the  direction  of  the  free  proprietors  when  summoned  into 
the  field. 

A  Duke  was  of  still  higher  authority,  and  usually  had 
command  over  several  counties.  These  offices,  originally 
conferred  during  pleasure,  would  naturally  be  affected  by 
the  same  causes  which  gave  hereditariness  to  beneficia  or 
fiefs;  and  so,  in  fact,  they  appear  to  have  been,  even  so 
early  as  under  the  Merovingian  race  of  French  ki-ngs.  The 
Marquisses  or  Margraves,  to  whom  was  entrusted  the  cus- 
tody of  the  borders  or  frontiers,  followed  the  example  of 
the  counts  and  dukes,  and  all  these  officers,  both  by  thus 
assuming  a  kind  of  patrimonial  right  to  their  dignities, 
and  by  the  constant  acquisition  of  private  estates  within 
the  limits  of  their  jurisdictions,  rendered  themselves  for- 
midable to  the  crown,  and  in  time  engrossed  to  themselves, 
and  the  n;osl  eminent  proprietors  of  lands,  the  right,  or  at 
least  the  power,  of  electing  the  Mayors  of  the  Palace,  who, 
from  being  mere  officers  of  the  court,  had  now  become  al- 
most masters  of  the  kingdom.  Thus,  from  the  union  of 
large  landed  property  with  the  usurpation  of  personal  dig- 
nities for  their  heirs,  the  feudal  chiefs  laid  the  foundation 
of  that  landed  aristocracy  which  is  the  most  peculiar  cha- 
racteristic of  the  political  system  of  Europe  during  many 
centuries,  and  may  in  fact  be  regarded  as  the  strongest 
feature  which  distinguishes  the  despotism  of  Asia,  and  the 


Lect.  X.]  OF    THE    FEUDAL    LAW.  493 

equality    of  modern  republics,  from   the   feudal  polity  of 

which  I  am  now  treating. 

Causes  of  the  pre-       Division  IV.     It  is  evident  from  the 

valence    of    feudal  brief  account  I  have  given  of  the  mode 

over  allodial  proper-      ».,..,. 

ty,  and  of  the  rise  of  °i  dividing  the  conquered  lands  practised 

Tenures.  among  the  invaders  of  the  Roman   em- 

pire, that  the  scheme  of  polity  called  the  Feudal  System, 
was  far  from  existing  among  them  even  for  some  ages  after 
their  settlement.  So  far  was  the  structure  of  their  states 
from  that  series  of  concatenated  dependencies,  in  which 
the  king  being  considered  as  lord  paramount,  every  holder 
of  land  beneath  him  traced  his  title  up  to  him  through  suc- 
cessive donors,  and  which  may  be  illustrated  by  the  fami- 
liar image  of  a  tree  with  its  root  turned  upwards,  and  its 
branches  dependent;  that,  in  fact,  they  were  assemblages 
of  free  and  independent  landholders,  with  an  elective  leader 
at  their  head,  and  who  owed  no  other  service,  and  bore  no 
other  badge  of  dependence,  than  a  contribution  of  their 
military  assistance  to  the  defence  of  the  community.  In 
these  points  they  resembled  many  other  nations,  and  it  was 
only  from  particular  circumstances,  whose  nature  and  pro- 
gress it  is  our  intention  cursorily  to  trace,  that  the  extraor- 
dinary state  of  government  and  manners  arose,  which  we 
term  the  feudal  system. 

Much  has  been  written  both  as  to  the  history  and  juris- 
prudence of  the  feudal  ages.  For  minute  information  on 
these  topics  I  refer  you  to  the  researches  of  Craig,  Spel- 
man,  Selden,  Sullivan,  Lowman,  Kaimes,  Squire,  Whita- 
ker,  Dalrymple,  Gilbert,  Wright,  Harrington,  Hallam, 
Steuart,  Millar,  Robertson,  Hume,  Montesquieu,  and  many 
others,  who  have  devoted  much  time  to  the  laws,  manners 
and  institutions  of  the  middle  ages.  Whether  we  view 
the  influence  which  this  long  prevailing  system  of  laws 
had  on  the  political  and  municipal  codes  of  every  nation  in 
which  it  has  prevailed,  or  advert  to  its  effects  even  on  the 


494  jf   the   feudal   law.  [Lect  \ 

jus  gentium,  or  international  law  of  Europe,  we  cannot 
but  esteem  it  a  subject  of  the  greatest  interest,  no  less  to 
the  jurisprudent  than  the  historian. 

The  origin  of  feuds,  or  at  least  something  analagous  to 
them,  has  been  sought,  and  supposed  to  be  found,  in  va- 
rious nations,  indeed  in  the  history  of  almost  every  nation, 
from  the  Jews  to  the  Mexicans.  Though  partial  resem- 
blances to  the  feudal  system  may  no  doubt  be  discovered 
in  the  early  history  of  many  nations,  and  though,  for  ex- 
ample, the  relation  of  patron  and  client,  in  the  Roman  re- 
public, was  somewhat  similar  to  that  of  lord  and  vassal, 
in  respect  to  mutual  fidelity;  and,  to  give  another  instance, 
though  the  veterans  of  the  republic  received  lands  on  con- 
dition of  public  defence;  yet  the  relation  of  patron  and 
client  was  not  founded  in  any  degree  on  tenure,  or  military 
service;  nor,  in  the  other  case  alluded  to,  did  the  relation 
subsist  between  the  soldier  and  his  individual  lord,  but  be- 
tween him  and  the  state  at  large.  On  this  subject  the 
learned  Selden,  when  speaking  of  Romulus's  institution  of 
patron  and  client,  remarks  that  'though  there  certainly  was 
a  bond  between  the  parties,  yet  it  does  not  appear  there 
was  any  possession  held  by  that  bond.'* 

The  feudal  policy,  like  the  garden  of  Eden,  has  been 
found,  as  we  have  said,  by  fanciful  writers,  not  only  in 
Rome,  but  in  the  schemes  of  government  of  almost  every 
other  nation.  Lowman  points  out  a  great  similarity  be- 
tween this  system  and  that  of  the  Hebrews. t     It  has  been 

*  Selden's  Titles  of  Honour,  part  2,  ch.  1,  sec.  23. 

j  Lowman  on  the  Civil  Government  of  the  Hebrews.     Chap.  4. 

This  opinion  is  also  countenanced  by  several  other  respectable  writers, 
among  whom  is  Dr  Jennings,  in  his  able  work  on  '.7etcis/»  Antiquities.'  In 
his  inquiry  into  the  origin  of  tithes,  and  the  reason  why  the  priests  and 
Levites  should  be  thus  supported,  rather  than  by  allotting  to  them  an  inhe- 
ritance in  a  portion  of  the  lands,  he  says  that  'the  tithes  reserved  by  God 
to  be  paid  by  the  Israelites  to  his  priests,  might  have  been  designed  as  an 
acknowledgment  that  they  had  received  their  estates  from  the  gift  of  Deity, 


Lect.  X.]  OF    THE    FEUDAL    LAW,  495 

found  by  others  among  the  American  Indians;  in  the  is- 
lands of  the  Pacific  ocean;  among  the  Britons;  and  in  va- 
rious parts  of  Europe  and  Asia,  long  prior  to  the  invasion 
of  the  Roman  empire  by  the  Lombards  and  other  northern 
nations. 

That  lineaments  of  the  feudal  policy  are  discoverable  in 
the  history  of  nearly  all  rude  nations,  there  can  be  no 
doubt;  but  the  inferences  which  have  been  deduced  by 
some  writers  from  these  occasional  resemblances,  are  too 
wide;  and,  in  some  instances,  entirely  visionary,  as  we 
shall  have  occasion  presently  to  show.  We  have  only  to 
remark  at  this  time,  that  the  Highlanders  and  the  Irish, 
among  whom  these  traces  of  feudalism  have  been  supposed 
to  be  found,  were  collected  into  clans  by  imaginary  kin- 
dred, and  respect  for  birth,  and  not  by  vassalage.  So,  in 
Poland  and  in  Russia,  where  all  the  nobles  were  equal  in 
rights,  and  wholly  independent,  and  all  others  were  in  ser- 
vitude, we  discover  something  even  very  opposite  to  'the 
long  gradations  and  mutual  duties  of  the  feudal  system.' 
We  may  add  that  the  dominions  of  Charlemagne,  which 
embraced  France  and  Germany,  and  something  more;  and 
also  England,  after  the  Norman  conquest,  as  well  as.  Naples 
and  Arragon,  appear  to  have  been  the  only  countries  in 
which  the  principles  of  feudalism  were  fully  developed. 

and  that  they  held  them  by  no  other  tenure,  in  which  view  these  tithes 
may  be  regarded  as  a  quit-rent,  to  be  annually  paid  to  God,  the  original 
proprietor  of  the  land,  who  had  conquered  it  for  them,  and  put  them  into 
possession  of  it.  Paying  it  to  the  priests  and  Levites,  God's  immediate  ser- 
vants and  ministers,  was  paying  it  to  him;  and  as  the  Israelites  held  their 
estates  by  this  tenure,  a  negleet  or  refusal  to  pay  tithes  induced  a  forfei- 
ture of  the  estate.'  The  learned  author  then  proceeds  to  compare  this  re- 
servation of  tithes  to  the  quit-rent  reserved  by  William  the  Conqueror, 
who,  when  he  parcelled  out  the  lands  of  England,  reserved  a  certain  small 
rent,  to  be  annually  paid  out  of  every  estate  to  the  crown,  as  an  acknow- 
ledgment that  it  was  received  from;  and  held  under  him  as  a  feudal  lord. 
1  Jenn.  Jew.  Antiquities,  240. 


496  OF   THE    FEUDAL    law.  Lee*.  -\ 

We  have  seen  already  how  the  kings  of  the  rude  invaders 
of  the  Roman  empire,  who  had  a  more  ample  endowment, 
and  to  whom  fell  the  residue,  of  the  conquered  lands,  sought 
to  attach  to  their  persons  and  fortunes  their  more  eminent 
followers,  by  liberal  donations  out  of  their  own  ample 
share,  over  and  above  the  allotment  originally  made  to 
every  freeman.  Enriched  thus  at  once  by  their  allodial 
share,  and  by  the  grants  of  their  sovereigns,  these  larger 
proprietors,  after  fixing  in  their  descendants  the  inheri- 
tance of  these  at  first  resumable  grants,  set  themselves  to 
securing  the  attachment  and  services  of  their  companions 
and  inferiors,  by  carving  out  portions  to  be  held  of  them- 
selves, by  a  tenure  similar  to  that  by  which  they  held  of 
the  sovereign.  Their  possessions  were  also  augmented  by 
their  usurpations,  in  the  quality  of  counts,  dukes  and  mar- 
quisses,  of  the  crown  lands  contained  within  their  respec- 
tive jurisdictions;  and  having  thus  rendered  themselves 
formidable  to  the  crown,  and  at  the  same  time  benefactors 
to  a  numerous  train  of  retainers,  they  became  dangerous 
members  of  the  state,  and  troublesome  neighbours  to  the 
small  allodial  proprietors.  Inequality  of  property,  more 
especially  in  land,  is  particularly  productive  of  mischief 
in  a  warlike  and  turbulent  age;  and  the  independent  free- 
man, unable  to  protect  himself  in  the  enjoyment  of  his 
right,  was  generally  happy,  or  at  least  compelled,  to  pur- 
chase safety  by  invoking  the  protection,  and  courting  the 
service  of  his  powerful  neighbours.  The  domestic  wars 
waged  by  unquiet  and  disobedient  nobles,  aggravated  the 
evil,  and  forced  those  of  inferior  power  and  property  to 
seek  this  feudal  alliance;  which,  if  it  laid  them  under  the 
obligations  of  vassalage,  secured  them,  however,  the  bene- 
fits of  protection.  In  a  rude  age,  destitute  of  records,  the 
nobles  might  easily  assume  the  lordship  of  lands  by  usur- 
pation. Hence  was  it,  according  to  Montesquieu  and 
others,  that  the  feudatories  of  the  king  at  least,  had  greater 


Lcct.  X.]  OF    THE    FEUDAL    LAW.  497 

privileges  bestowed  on  them  by  the  policy  of  the  age, 
than  even  the  allodial  proprietors.  This,  combined  with 
the  other  circumstances  just  mentioned,  will  sufficiently  ac- 
count for  the  general  transition  of  allodial  property  into 
feudal.  In  addition  to  what  has  been  said,  it  is  supposed 
to  have  been  a  frequent  practice  with  the  less  powerful 
freemen,  to  purchase  the  protection  of  the  great  lords  by  a 
stipulated  payment  of  money;  an  engagement  which  re- 
ceived the  name  of  'Commendation;'  and  it  may  be  fairly 
presumed  that  the  stronger  parity  was  not  slow,  when  cir- 
cumstances favoured,  to  change  this  voluntary  contract  into 
a  complete  feudal  dependence. 

Hence,  during  the  tenth  and  eleventh  centuries,  allodial 
lands  in  France  had  chiefly  become  feudal,  being  often 
surrendered  by  their  owners,  and  received  back  on  feudal 
conditions;  or,  more  frequently,  the  allodial  proprietor 
acknowledged  himself,  in  a  formal  manner,  the  'man'  or 
vassal  of  a  chief  or  Suzerain,  and  thereby  confessed  an 
original  grant,  which  had  never  in  fact  been  made.  It  was 
the  same  in  Italy  and  in  Germany,  though  not  in  the 
same  degree;  and  even  in  France  it  were  inaccurate  to 
assert  that  the  feudal  system  had  an  unlimited  prevalence, 
allodial  tenures  always  subsisting  there  as  well  as  in  the 
empire.  Yet  it  is  manifest  how  strong  the  inducements 
must  have  been,  in  these  lawless  times,  to  make  the  former 
prevail  over  the  latter  species  of  property,  and  lead  the  al- 
lodial proprietor  to  seek  with  anxiety  to  become  a  feudal 
tenant. 

A  great  chieftain,  possessed  of  large  territory,  and  in- 
vested with  ample  military  and  civil  jurisdiction  as  count 
or  duke,  lived  at  his  country-seat,  which  the  violence  of 
his  neighbours  induced,  and  the  weakness  of  the  royal  au- 
thority permitted  him  to  fortify.  He  thus  became  clothed, 
with  a  strong  personal  and  territorial  influence  over  a  large 
body  of  vassals:  these  he  industriously  educated  in  military 
63 


498  OF    THE    FEUDAL    LAW.  [Lcct.  \. 

exercises,  lavished  on  them  his  hospitality,  and   conferred 
on  them  the  only  means  of  gratifying  their  ambition,  or 
even  of  employing  their    leisure.      The  countenance  of 
power  would  then,  as  it  ever  has,  attach  respect,  as  it  mi- 
nistered to  their  wants  whilst  it  gratified  their  vanity;  and 
the  loose  police  of  the  times,  if  it  weakened  the  bonds  of 
the  general  government,  knit  more  closely  those  smaller 
associations  for  defence  and  support.     Hence,  the  govern- 
ment of  the  feudal  kingdoms  verged  perpetually  more  and 
more  towards  aristocracy;  and  the  barons  and  great  lords 
acquired  over  their  vassals  that  strong  authority,  and  those 
feudal    privileges,   which  were   so  far   from   belonging   to 
them  at  the  first  settlement  of  the  barbarians,   that  they 
themselves  did  not  even  exist  as  a  body  of  nobility  distin- 
guished from  the  mass  of  Franci  or  freemen.    Five  centu- 
ries, in  fact,  elapsed  before  the  allodial  tenures,  which  had 
been  by  far  the  most  general,  gave  way,  and  before  the  re- 
ciprocal contract  of  the  feud  attained  its  maturity. 

Various  writers  refer  to  an  edict  of  the  emperor  Conrad 
II.  in  the  year  1037,  as  marking  the  full  maturity  of  the 
feudal  system;  and  we  find  that  four  principal  regula- 
tions of  that  edict  relate  to  as  many  important  principles  of 
feuds.  The  first  principle  to  which  I  allude,  as  contained 
in  that  document,  is,  that  no  freeman  should  be  deprived 
of  his  fief,  whether  held  of  the  emperor  or  of  a  mesne 
lord,  but  by  the  laws  of  the  empire,  and  the  judgment  of 
his  peers.  We  need  scarce  mention  that  this  provision 
was  adopted  in  England,  nearly  two  centuries  afterwards, 
by  the  celebrated  statute  of  Magna  Charta.  The  second 
principle  of  the  edict  is,  that  from  all  such  judgments  a 
vassal  holding  in  capite  might  appeal  to  his  sovereign.  In 
this  provision  we  perceive  the  origin  of  the  judicial  pow- 
ers formerly  exercised  by  English  sovereigns,  and  the 
source  of  that  equitable  jurisdiction  which,  in  after  times, 
was  vested   in  the  Lord  Chancellor,   as  the  king's   vice- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  499 

gerent.  Thirdly.  In  this  edict  we  also  find  the  principle 
that  feuds  should  be  inherited  by  sons,  and  their  children; 
or,  in  their  failure,  by  brothers,  provided  the  feuds  were  pa- 
ternal: and  here  we  see  the  origin  of  that  canon  of  English 
descents  which  restricts  the  inheritance  of  lands  to  the 
blood  of  the  first  purchaser  or  acquirer;  and  of  the  conse- 
quent exclusion  of  the  half  blood.  Fourthly.  The  last 
rule  to  be  found  in  this  edict  is,  that  the  lord  should  not 
alienate  the  feud  of  his  vassal  but  with  his  consent.  In 
this  regulation  we  perceive  the  source  of  the  common 
law  doctrine  of  forfeiture  for  unauthorized,  and  of  fines  for 
authorized  alienations,  the  obligation  of  lord  and  vassal  in 
respect  to  alienation,  being  reciprocal.  So  widely  did  the 
principle  spread,  of  considering  all  property  as  subjected 
to  feudal  rights  and  obligations,  that  not  only  were  lands 
bestowed  as  feuds,  but  even  casual  rents;  as,  for  example, 
the  profits  of  a  toll,  the  fare  paid  at  ferries,  the  salaries  of 
offices,  and  even  pensions,  were  given  and  held  as  fiefs,  and 
military  services  exacted  on  account  of  them.  Nay,  the 
profits  arising  from  masses  said  at  the  altar,  though  strictly 
an  ecclesiastical  due,  were  sometimes  seized  by  the  barons, 
and  parcelled  out  among  their  sub-vassals.  Even  the 
clergy  raised  seigniories  of  the  donations  of  land  made  to 
them  by  piety  and  faith,  and  exacted  feudal  service  and 
fealty  from  their  feudatories. 

Hence  we  find  in  the  'Book  of  Feuds'  a  great  variety 
of  names  of  feuds,  as,  for  example,  the  Feudum  de  cave- 
nd,  the  Feudum  de  camera,  Feudum  soldatae,  Feudum 
habitationis,  Feudum  gardisc,  Feudum  gastaldse,  Feu- 
dum tnercedis,  &c.  a  brief  explanation  of  each  of  which 
will  be  sufficient. 

1.  Feudum  de  Cavenu,  was  the  tenant's  right  to  re- 
ceive from  the  king's  or  lord's  cellar  {cavenu.)  a  certain 
supply  of  provisions.  This  feud  came  in  lieu  of  those 
feasts  which  the  king  or  lord,  in  more  ancient  times,  gave 


500  OF    THE    FEUDAL    LAW.  [Lcct.  X- 

to  their  comites,  or  companions  in  arms.     These  feuds  al- 
ways terminated  with  the  tenant's  life,  or  with  that  of  his 

lord. 

2.  Feudum  de  camera  was  a  similar  allowance  of  mo- 
ney out  of  the  repository  or  camera  where  the  king  or 
lord  kept  his  funds.  In  this,  as  well  as  in  the  preceding 
case,  the  tenant's  right  to  draw  the  provisions  or  money, 
depended  on  there  being  unappropriated  provisions  in  the 
cavena,  or  money  in  the  camera;  and  these  were  granted 
either  for  past  or  future  services.  In  both  cases  the  feu- 
dists adopted  the  language  of  the  civilians,  and  the  former 
were  denominated  inofficiosa,  the  latter  officiosa.  Du 
Cange,  Spelman,  Craig  and  others  have  spoken  of  these 
feuds  under  the  heads  of  Camera  and  Cavena. 

To  these  feuda  inofficiosa  we  may  refer  the  pensions 
granted  at  this  time  by  the  king  out  of  his  revenue;  and  to 
the  feuda  officiosa  we  may  refer  the  salaries  of  all  offi- 
cers, as  judges,  secretaries,  state  prosecutors,  &c. 

3.  Feudum  soldatx  was1  an  inofficious  or  gratuitous  feud1, 
consisting  of  a  piece  of  money  (solidus)  granted  by  the 
king  or  lord,  either  as  a  bounty,  or  for  the  tenant's  past 
services. 

4.  Feudum  habitationis.  This  consisted  of  the  te- 
nant's right  to  dwell  in  a  house  belonging  to  the  lord, 
without  the  rendition  of  any  rent  or  service,  the  same  be- 
ing held  by  fealty  only. 

5.  Feudum  gar  disc.  This  was  an  officious  feud,  and 
consisted  of  a  pension  granted  to  the  tenant  in  considera- 
tion of  his  future  defence  of  a  castle.  It  differed  from 
another  species  of  feud,  called  castle-guard,  in  two  respects, 
viz.  that  in  this  the  castle  or  land  was  actually  transferred 
to  the  tenant  by  livery  of  seisin,  and  that,  by  the  strict 
feudal  law,  the  castle  could  not  be  granted  for  a  longer  pe- 
riod than  a  year;  whereas  in  the  feudum  gardirc,  the  te- 
nant had  no  estate  whatever  in  the  castle  or  land  which  he 


Lect.  X.] 


OF    THE    FEUDAL    LAW.  501 


was  bound  to  defend.     To  this  feud  we  may  refer  the  sala- 
ries at  present  granted  to  the  governors  of  garrisons. 

6.  Feudum  gastaldce.  This  was  also  a  pension.  It 
was  granted  by  the  lord  to  his  tenant  for  performing  the 
duties  of  receiver,  steward  or  treasurer. 

7.  Feudum  mercedis.  This  was  an  allowance  made  to 
the  king's  or  lord's  advocate;  and  to  this  we  may  refer  the 
modern  grants  to  lawyers  pro  concilio  impendendo;  or  to 
the  king's  or  queen's  attorney  or  solicitor  general. 

These  seven  species  of  feuds  are  said  to  lie  in  grant,  and 
not  in  livery,  they  being  conveyed  by  improper  investi- 
ture, of  which  I  shall  presently  speak.     They  are,  more- 
over, referrible  to  that  class  of  property  denominated  incor- 
poreal, as  they  consist  of  mere  rights,  and  not  of  an  estate 
in  any  visible  and  existing  thing.     Notwithstanding  the 
great  variety  of  feuds  existing  at  the  time  of  which  we  are 
speaking,  allodial  property  long  maintained  its  ground  in 
some  countries.      In  Languedoc,  during  the  ninth,  tenth, 
and  great  part  of  the  eleventh  century,  property  seems  to 
have  been  entirely  allodial:  it  was  the  same  in  Catalonia 
and  Roussillon;  and  in  the  Low  Countries  this  species  of 
tenure  continued,  as  we  are  informed  by  Robertson,  during 
the  eleventh,  twelfth  and  thirteenth  centuries.* 
Qualities  and  inci-       Division  V.     Having   thus   cursorily 

dents  of  feuds,    l.  noted  the  progress  of  feudal  tenures,  and 

Their  general  quali- 

ties    viz.    Homage,  the   general    character  ot   those   circum- 

Fealty,    Investiture,  stances  which  converted  nations  of  inde- 
2.    Their   particular  .  . 

incidents    viz.    Re-  pendent  proprietors  into  ieudatones;  free- 

liefs,  Fines  for  Ali-  men  who   claimed    their  possessions    by 

SSwardaWp^  "ght  of  their  own  s words>  into  vassals  who 
riage,  &c.  held  them  by  the  tenure  of  obedience  and 

fidelity  to  a  superior;  we  may  proceed  to  describe  the 

legal  qualities  and  effects  of  this  feudal  relation. 

*  1  Rob.  Charles  V.  !83.    Montesquieu,  book  31,  chap.  3.  1  Hume,  App. 
2.  Stewart's  Disserta.  119. 


502  OF    THE    FEUDAL    LAW.  [Lect.  X. 

The  essence  of  the  contract  between  lord  and  vassal  was 
support  on  the  one  side,  and  fidelity  on  the  other:  the  de- 
nial or  neglect  of  the  first  involved  the  forfeiture  of  the 
seigniory;  of  the  second,  that  of  the  land.  Of  such  strict- 
ness was  this  relation  considered  to  be,  that  the  vassal  was 
bound  to  make  war  for  his  lord  even  against  his  own  kin- 
dred, and,  during  the  height  of  the  feudal  system,  against 
the  king  himself. 

The  ceremonies  used  in  conferring  a  fief,  indicated  the 
solemnity  and  strictness  of  this  connexion.  These  were 
principally  three,  viz.  Homage,  Fealty  and  Investi- 
ture. We  shall  give  a  brief  explanation  of  these  general 
qualities  of  feuds. 

1.  Of  Homage.  The  uncovered  head,  in  the  act  of 
performing  homage;  the  belt  uugirt;  the  sword  and  spurs 
removed;  the  kneeling  posture,  and  the  placing  of  his 
hands  betwixt  those  of  his  lord,  in  which  circumstances  he 
promised  to  become  his  man  from  thenceforward,  to  serve 
him  with  life  and  limb  and  worldly  honour,  faithfully  and 
lo}'ally;  were  strong  and  significant  expressions  of  the  sub- 
mission and  devotedness  of  the  vassal  towards  his  lord. 
The  lord  in  person  only  could  receive  homage;  the  oath  of 
fealty,  on  the  contrary,  might  be  received  by  proxy;  and 
though  it  was  indispensable,  the  ceremony  was  less  solemn 
and  peculiar  than  that  of  homage. 

In  doing  homage,  the  tenant,  whilst  kneeling,  said,  'I 
become  your  man  from  this  day  forward,  for  life,  and  for 
member,  and  for  worldly  honour,  and  unto  you  shall  be 
true  and  faithful,  and  bear  you  faith  for  the  lands  that  I 
hold  of  you;  saving  the  faith  that  I  owe  to  our  sovereign 
lord  the  king.'  And  the  lord,  whilst  sitting,  kissed  the 
tenant. 

The  foregoing  is  called  homage  by  tenure,  to  distinguish 
it  from  liege  homage,  performed  by  a  sovereign  prince  to 
another  sovereign,  for  lands  held  by  the  one  of  the  other. 


Lect.  X.]  OF    THE    FEUDAL    LAW.  503 

Liege  homage  includes  fealty,  and  all  the  services  conse- 
quent upon  it.  Homage  was  abolished  in  England  by  the 
statute  12  Charles  II.  ch.  24. 

2.  Of  Fealty.  The  obligations  of  fealty  are  also 
wholly  of  feudal  origin,  and  are  incident  to  every  species 
of  tenure,  Frankalmoigne  and  Tenancy  at  Will  excepted. 
Like  homage,  it  is  an  oath  taken  by  the  tenant  on  his  ad- 
mittance, that  he  will  be  true  to  the  lord  of  whom  he 
holds  the  lands.  No  one  performed  homage  but  he  who 
held  the  estate  as  an  inheritance;  whereas  every  tenant 
was  bound  by  fealty,  except  those,  as  we  have  mentioned, 
who  held  either  in  frankalmoigne,  or  at  the  lord's  will, 
in  neither  of  which  would  the  duties  of  fealty  be  at  all  con- 
sistent with  the  holding.  The  oath,  which  was  taken  by 
the  tenant  standing  before  his  lord,  and  with  his  right 
hand  on  the  book,  was  as  follows.  'I,  A  B,  will  be  to  you, 
my  lord  C,  true  and  faithful,  and  bear  to  you  fealty  and 
faith  for  the  lands  and  tenements  which  I  hold  of  you; 
and  I  will  truly  do  and  perform  the  customs  and  services 
that  I  ought  to  do  to  you.'  Fealty  continues  to  be  inci- 
dent to  every  tenure,  as  in  former  times,  and  was  in  no  de- 
gree varied  by  the  statute  of  Charles  II.  It  is,  however, 
but  seldom,  if  ever,  exacted  at  the  present  day.  It  may 
be  enforced  by  distress. 

3.  Of  Investiture.  Investiture  was  the  actual  con- 
veyance of  the  lands  &c.  to  be  held  as  a  fief,  and  was  of 
two  kinds,  proper  and  improper;  the  first  being  an  actual 
putting  of  the  tenant  into  possession,  by  the  lord,  or  his 
deputy,  on  the  ground,  known,  in  the  English  law,  by 
the  name  of  Livery  of  Seisin;  the  second  being  a  sym- 
bolical delivery  of  the  possession  of  the  land,  by  handing 
to  the  tenant  a  turf,  a  stone,  the  key  of  a  door,  or  any 
other  symbol  indicative  of  a  transfer  of  ownership.  The 
terms  'proper,  and  improper  investiture"  are  constantly 
used  in  the  feudal  jurisprudence  of  the  continent,  and  arc 


504  OF    THE    FEUDAL    LAW-  fLcct.  X, 

strictly  synonymous  with  the  English  expressions,  livery 
of  seisin  in  deed,  and  livery  in  law. 

Improper  investiture  was  often  a  necessary  substitute  for 
the  proper,  as  the  latter,  in  those  turbulent  ages,  was  fre- 
quently attended  with  great  inconvenience,  and  was  some- 
times impracticable.     Both  species  were  performed  in  the 
presence  of  the  pares  curise,  or  the  freeholders  of  the 
county  in  which  the  lands  lay.     The  person  to  be  consti- 
tuted tenant  by  improper  investiture,  humbly  prayed  the 
lord  to  grant  him  a  certain  estate;  the  lord  then  designated 
his  grant  by  words  or  by  deed,  and  accompanied  this  by 
the  delivery  of  a  ring,    a  sword,  a  staff,  or  by  clothing 
him  with  a  robe,  which,  being  the  most  usual,  gave  to  the 
ceremony  the  name  of  investiture.    After  investiture  of  ei- 
ther kind,  the  tenant  did  fealty,  and   sometimes  homage. 
In  the  case  of  proper  investiture,  the  tenant  received  the 
actual  seisin.     It  was  effected  by  going  on  the  lands,  and 
giving  to  the  tenant,  while  there,  a  twig,  a  turf,  a  key,  or 
hasp  of  the  door,  in  the   name  of  the  whole.      This  cere- 
mony being  to  be  witnessed  by  the  pares  curix,  that  is, 
by   the  freeholders  of  the    county,   it    could   only    be  of 
lands  situate  in  the  county  to  which  they  belonged.   Hence, 
where  the  lands  lay  in  more  than  one  county,  the  ceremo- 
ny was  to  be  performed  in  each,  and  before  the  pares  of 
each.     Improper  investiture,  though  very  usual,  conferred 
only  a  right  of  action,  and  not  a  right  of  entry;  and  hence 
was  it  that,  if  the  lord  made  livery  of  seisin,  or  proper 
investiture,  to  B,  of  lands  which  he  had  previously  convey- 
ed to  A  by  improper  investiture,  B  could  not  be  compelled 
to  yield  up  the  land  to  A;  but  A  had  merely  a  right  of  ac- 
tion, to  compel  the  lord  to  an  excambium,  (that  is,  to  a  re- 
compense of  a  like  estate)  or  damages,  in  case  he  had  no 
lands  wherewith  to  indemnify  his  tenant. 

The  duties  of  the  vassal  commenced   after  investiture 
and  fealty,  and  these  duties  displayed  a  singular  mixture  of 


Lcct.  X.]  OF    THE    FEUDAL    LAW.  505 

the  most  submissive  obedience,  and  of  a  high  toned  and 
generous  loyalty.  To  divulge  the  lord's  counsel;  to  con- 
ceal from  him,  and  much  more  to  assist  in  the  machina- 
tions of  others;  to  injure  his  person  or  fortune;  or  to  vio- 
late the  sanctity  of  his  roof  and  family;  were  breaches  of 
the  fidelity  which  he  had  sworn,  and  some  of  them  in- 
volved the  forfeiture,  or  return  of  the  lands,  to  the  lord; 
as  the  lord,  on  his  part,  lost  his  seigniory,  who  violated 
the  daughter  of  a  vassal  entrusted  to  his  custody  or  ward- 
ship. 

But  the  feudatory  was,  above  all,  bound  to  military  ser- 
vices to  his  seignior  or  lord:  he  was  to  adhere  to  his  side 
in  battle;  to  lend  him  his  horse  when  dismounted;  and  to 
go  into  captivity  as  a  hostage  for  him,  should  he  be  taken. 
This  military  service  was  uncertain,  though  generally  set- 
tled by  some  usage.  The  tenant  of  a  knight's  fee  (at 
least  such  was  the  case  in  England)  was  bound,  if  required, 
to  be  in  the  field  forty  days,  and  wholly  at  his  own  ex- 
pense. This  was  extended  by  St.  Louis  to  sixty,  unless 
when  there  was  an  express  reservation  of  a  shorter  service 
in  the  charter  of  infeudation.  But  the  length  of  service 
diminished  according  to  the  quantity  of  land,  and  the 
owner  of  half  or  the  eighth  of  a  knight's  fee,  served  res- 
pectively but  twenty  or  five  days;  and  the  same  appor- 
tionment was  observed  in  case  of  a  commutation  of  these 
military  services  for  a  pecuniary  assessment  called  Escuage. 
Men  over  sixty  years  of  age,  public  magistrates,  and  wo- 
men were  allowed  to  send  substitutes  to  war.  A  failure  in 
this  primary  duty  involved,  in  strictness,  forfeiture  of  the 
feud,  which  was,  however,  generally  forgiven,  and  an 
amercement  was  inflicted,  which  the  barons  paid,  not  only 
for  their  own  absence,  but  that  of  every  knight  and  squire 
of  their  vassals.  As  to  the  place  of  service,  the  customs 
were  much  less  certain  and  uniform;  some  compelling  the 


64 


505  OF    THE    FEUDAL    LAW.  [Lect.  X. 

vassal  to  service  in  all  places,  and  others  limiting  it  to  the 
boundaries  of  his  lord's  domain. 

Having  sufficiently  explained  these  general  qualities  of 
fiefs,  we  are  now  to  examine  their  incidents,  or  what  have 
been  usually  called  the  fruits  of  tenure.  These  are  the  six 
following;  Reliefs,  Fines  for  alienation,  Escheats,  Aids, 
Wardship  and  Marriage.  We  shall  bestow  a  brief  ex- 
amination on  each. 

1.  Of  Reliefs.     We  have  already  mentioned  that  feuds 
or  benefices,  whether  held  of  the  crown  or  of  its  great 
vassals,    were   not  originally  inheritable,  but  were  only 
grants  for  life.     These,  however,  being  usually  renewed 
to  the  posterity  of  the  antecedent  possessors,  from  obvious 
motives,  this  constant,  or,  at  least,  common  renewal  grew 
from  custom  into  a  right.     It  was,  nevertheless,  natural 
that  the  heir  should  make  some  acknowledgment  for  this 
favour,  whilst  the  lord,  on  the  other  hand,  would  not  at 
any  time  require  much  at  the  hands  of  the  heir,  who  ap- 
peared to  have  so  fair  a  claim  to  what  had  been  possessed 
by  his  ancestor,  and  probably  had  been  much  improved  by 
him.     This  acknowledgment  or  gratuity  would  as  naturally 
be  turned  by  length  of  time  into  a  right  or  due  of  the 
lord's,  and  thus  the  grants  for  life  would  oecome  indefeasi- 
ble inheritances,  subject,  on  every  death,  to  a  charge  on  the 
heir.     The  sum  or  other  thing  thus  paid  or  given  by  the 
heir  to  the  lord  of  the  fee,  on  succeeding  to  the  inheritance, 
was  denominated  a  relief,  from  relevia  or  relevare,  because 
the  estate  was  relieved  from  the  lapsed  state  into  which,  by 
the  theory  of  the  feudal  law,  it  had  fallen.     The  person 
claiming  to  succeed,  had  originally  no  right;  but  he  peti- 
tioned the  lord  for  a  new  investiture,  and  tendered  his  re- 
lief and  fealty.     In  process  of  time  the  petition  and  inves- 
titure were  dispensed  with,  and  the  heir  paid  the  relief, 
and  succeeded  in  course  to  the  estate  of  his  ancestor. 


Lect.  X.]  OP    THE    FEUDAL    LAW.  507 

The  relief  was  originally  paid  in  arms,  and  was  at  the 
lord's  discretion  in  amount.  This  being  found  inconve- 
nient, and  often  oppressive,  tenants  by  degrees  procured 
from  their  lords  more  favourable  terms,  and  obtained  from 
them,  on  their  first  investiture,  a  deed,  or  brevium  tes- 
tatum, which  stipulated  that  the  feud  should  descend  to 
the  tenant's  sons,  sometimes  by  name,  at  others,  to  them 
generally;  and  it  also  denned  with  sufficient  certainty  the 
kind  and  quantum  of  the  relief  to  be  exacted.  On  the 
grants  to  sons  generally  it  was  decided  by  the  feudists,  that 
grandsons  were  not  embraced,  as  the  fair  presumption  was 
that  grandsons  would  not  be  able  to  discharge  the  feudal 
duties  at  the  time  of  the  death  of  a  father  without  sons. 
This  decision  introduced  other  stipulations  into  the  brevia 
testata;  and  in  process  of  time  the  heirs  generally,  lineal 
and  collateral  female  as  well  as  male,  were  admitted  to 
the  feud  on  the  payment  of  the  required  relief. 

Some  writers  have  preferred  to  impute  the  origin  of  re- 
liefs to  the  rapacity  of  the  lords,  who  taking  advantage  of 
minors,  seizing  their  lands,  and  receiving  these  presents  as 
a  compromise,  at  last  turned  their  injustice  into  a  recog- 
nized and  indisputable  right.  I  confess  that  in  regard  to 
lands  originally  beneficiary,  the  first  account  seems  far 
more  natural;  while  the  last  is  more  probable  as  to  such 
lands  as  were  allodial,  but  surrendered,  and  granted  back 
as  feuds,  and  which  being  clearly  inheritable  from  the  be- 
ginning, offered  no  such  reason  to  the  lords  as  seems,  with 
some  justice,  afforded  by  the  first.  I  do  not  see,  however, 
why  we  may  not  assume  that  reliefs  may  have  arisen  from 
both  causes. 

The  relief  and  the  other  feudal  incidents  are  said  to 
have  been  established  in  France  towards  the  close  of  the 
tenth  century,  and  were  equally  known  in  England  after 
the  Norman  invasion,  about  the  latter  part  of  the  eleventh 
century.     Reliefs  were  not  abolished  in  England  by  the 


50S  OP    THE    FEUDAL    LAW.  [Lect.  X. 

celebrated  statute  12  Charles  II.  but  remain  a  legal  demand 
to  this  day,  in  all  cases  of  original  soccage  tenure,  and  of 
knight's  service  tenure,  converted  by  that  statute  into  com- 
mon soccage,  provided,  in  this  last  case,  a  quit  rent  or 
other  rent  had  been  reserved.  Hence,  at  this  day,  all 
lands  originally  held  by  free  and  common  soccage,  pay  a 
relief  on  the  death  of  every  tenant;  and  soccage  lands  also, 
which  became  so  by  the  operation  of  the  statute  of  Charles, 
are  liable  to  the  relief  if  any  rent  had  ever  been  reserved. 
It  is  here  proper  to  remark  that  Primer  Seisin  is  not  to  be 
confounded  with  relief.  The  former  differs  from  the  latter 
in  that  it  was  payable  by  the  king's  tenants  in  cwpite  in 
addition  to  the  ordinary  relief,  in  case  the  heir  was  of  full 
age  at  the  time  of  the  descent.  This  was  a  compensation 
to  the  crown  in  lieu  of  wardship,  which  the  crown  would 
have  had,  had  the  heir  been  a  minor.  Primer  seisin  was 
abolished  in  England  by  the  statute  of  Charles  II. 

2.  Of  Fines  for  Alienation.  The  feudal  tenure  was 
supposed  to  establish  a  connexion  so  intimate  between  the 
two  contracting  parties,  as  not  to  be  dissolved  by  either 
without  the  other's  consent.  On  the  transfer  of  the  lord's 
seigniory,  the  tenant  testified  his  concurrence  by  a  ce- 
remony called  in  England  Attornment.  The  assent  of 
the  lord  to  the  alienation  of  his  vassal's  land,  was  still 
more  necessary.  As  the  feud  was  presumed  to  have  been 
bestowed  for  reasons  peculiar  to  the  vassal  or  his  family; 
and  as  his  heart  and  arm  were  bound  to  his  superior,  and 
his  service  was  not  to  be  exchanged  for  a  stranger's,  who 
might  be  unable  to  render  it;  the  lord  was  entitled  either 
to  redeem  the  feud  by  paying  the  purchase  money,  or  to 
claim  a  part  of  the  value  as  a  fine  for  its  alienation.  This 
was  the  case  in  France,  and  in  other  countries  on  the  con- 
tinent; but  in  England  we  find  that  even  the  practice  of 
subinfeudation,  which  was  more  conformable  to  the  ge- 
nius of  the  feudal  system  than  alienation,  was  at  length  re- 


Led.  X.]  OF    THE    FEUDAL    LAW,  509 

strained  by  the  celebrated  statute  of  'Quia  employes  ler- 
rarumf  enacted  in  the  eighteenth  year  of  the  first  Ed- 
ward. 

As  to  the  origin  of  fines  for  alienation,  they  no  doubt 
sprung  from  the  strictly  reciprocal  and  feudal  relation  sub- 
sisting between  lord  and  tenant.  We  know  that  when 
estates  were  no  longer  granted  as  munera,  but  as  bene- 
fices for  life,  the  lords  were  not  content  with  the  fealty, 
and  the  prospect  of  the  tenant's  future  services,  but  de- 
manded from  their  vassals,  on  investiture,  an  honorary  fine. 
This  being  once  established,  there  was  no  difficulty  in  the 
lord's  successfully  exacting  a  similar  fine  on  every  aliena- 
tion of  the  feud;  for  in  contemplation  of  law,  there  was  a 
new  investiture  consequent  on  every  change  of  tenant; 
and  as  it  was  a  maxim  that  no  feudal  tenant  could  alienate 
unless  with  the  license  of  his  lord,  this  license  would  hard- 
ly be  given  without  some  present  compensation;  and  this 
the  tenant  would  more  readily  acquiesce  in,  as  he,  in  turn, 
could  exact  a  similar  fine  from  his  under-tenants.  Hence 
the  fine  for  alienation  soon  became  an  established  fruit  of 
tenure,  and  continued  such  in  England  until  it  was  abo- 
lished, in  the  case  of  subjects,  by  the  operation  of  the  sta- 
tute of  'Quia  emp tores  terrarumj  which  enabled  all  per- 
sons freely  to  alienate  their  lands,  provided  the  alienee 
held  the  land,  not  of  the  alienor,  but  of  the  alienor's  supe- 
rior lord,  and  by  the  same  services  by  which  the  lands  had 
been  holden  by  the  alienor  himself.  By  this  statute  sub- 
infeudation was  abolished,  and  alienation  introduced:  fines 
for  alienation,  of  course,  could  no  longer  be  demanded, 
except  those  due  to  the  crown  on  an  alienation  by  the 
king's  tenants  in  capile;  for  as  the  king  had  no  superior 
lord,  he  and  his  tenants  were  not  embraced  by  the  statute 
of  'Quia  emptores.'  But  this  perquisite  of  the  crown 
was  also  abolished  at  the  Restoration,  by  the  statute  of 
Charles  II.  so  that  fines  for  alienation  are  at  this  day  whol- 


510  OF    THE    FEUDAL    LAW.  [Lect.  X. 

ly  unknown  to  English  jurisprudence,  though  on  the  con- 
tinent, and  in  some  of  the  British  provinces,  they  are  still 
exacted. 

3.  Of  Escheat.  Escheat  was  the  reversion  to  the 
lord  of  such  feuds  as  became  vacant  for  want  of  legal  heirs 
in  the  posterity  or  kindred  of  the  first  possessor,  or  feudal 
grantee.  This  falling  of  the  feud  to  the  lord  who  granted 
it,  or  to  his  heirs,  was  the  natural  consequence  of  feuds 
being  granted  to  tenants  in  consideration  of  the  perfor- 
mance of  military  or  other  services;  for  the  vassal  having 
left  no  heir,  so  that  there  was  no  one  to  perform  these  ser- 
vices, the  lord  who  granted  the  feud  was  the  only  person 
having  any  just  pretension  to  it.  These  reversions  or  es- 
cheats were  a  most  important  fruit  of  tenure,  especially  in 
England,  where  there  was  no  power  of  devising  them  by 
will.  They  were  still  more  frequent  on  account  of  the 
forfeitures  occasioned  by  the  delinquency  of  the  vassal, 
which  forfeitures  were  for  a  year,  during  the  tenant's 
life,  or  forever,  according  to  circumstances. 

Under  the  rapacity  of  kings,  absolute  forfeitures  soon 
came  to  prevail;  and  by  the  doctrine  of  the  corruption  of 
blood,  the  heir  was  effectually  excluded  from  deducing  his 
title  through  an  attainted  ancestor;  and  thus  the  estate 
would  vest  as  absolutely  in  the  lord,  as  if  there  had  been 
an  escheat  ])ropter  defectum  sanguinis,  or,  in  other  words, 
as  if  the  tenant  had  actually  left  no  posterity  or  relatives 
whatever. 

4.  Of  Aids.  This  fruit  of  tenure  deserves  some  atten- 
tion, as  it  was  the  seed  from  which  sprang  the  taxation  of 
modern  times.  These  aids  were  sums  of  money  which, 
under  certain  circumstances,  the  lord  was  entitled  to  de- 
mand of  his  vassal.  Though  they  varied  with  local  cus- 
toms, or  depended  on  the  tyrannous  caprice  of  the  feudal 
lords,  there  were  three  kinds  universally  acknowledged, 
both  on  the  continent  and  in  England,  and  these  were,  1, 


Lect.  X.]  OF    THE    FEUDAL    LAW.  511 

to  enable  the  lord  suitably  to  marry  and  portion  his  eldest 
daughter;  2,  to  make  his  eldest  son  a  knight;  and  3,  to 
redeem  the  lord's  person  from  captivity.  Aids  of  all  kinds 
were  oppressive,  not  only  from  the  uncertainty  of  their 
amount,  but  from  the  circumstance  that  the  lords  some- 
times demanded  novel  and  unexpected  aids,  in  order  to 
meet  their  private  exigencies;  as  to  enable  them  to  pay 
their  debts,  to  discharge  their  reliefs  to  their  superior 
lords,  or  to  defray  the  expenses  of  some  sudden  military 
expedition,  &c.  These  capricious  exactions  becoming  at 
length  an  intolerable  grievance,  it  was  remedied  in  Eng- 
land by  the  statute  of  Magna  Charta,  the  twelfth  chapter  of 
which  provided  that  the  king  should  take  no  aid  without 
the  consent  of  parliament,  and  that  lords  should  demand  no 
other  aids  than  the  three  customary  ones,  viz.  those  ac- 
knowledged ones  which  I  have  just  enumerated.  The 
other  evil  to  which  I  have  alluded,  was  also  remedied  by 
the  statute  of  Westminster  1,  which  denned  the  amount  to 
be  paid  for  making  the  lord's  eldest  son  a  knight,  and  for  mar- 
rying his  eldest  daughter,  and  restricted  it  to  twenty  shil- 
lings for  every  knight's  fee  of  land  held  by  the  tenant. 
The  amount  of  the  aid  to  ransom  the  lord's  person  was  ne- 
cessarily permitted  to  remain  undefined.  Besides  these 
aids,  there  were  several  others  known  to  the  feudal  juris- 
prudence, at  least  of  the  continent.  In  France  an  aid  was 
demanded  for  the  lord's  expedition  to  the  Holy  Land,  for 
marrying  his  sister  or  eldest  son,  and  for  paying  a  relief 
to  his  suzerain  or  chief  lord.  These  aids  became  as  op- 
pressive on  the  continent  as  they  had  been  found  in  Eng- 
land, and  were  from  time  to  time  variously  modified  by 
local  customs,  and  baronial  or  other  partial  legislation.  But 
in  England  they  were  wholly  abolished  by  the  statute  12 
Charles  II.  and  the  necessities  of  the  state  have  substituted  in 
their  stead  a  system  of  taxation  which,  though  more  certain, 
has  been  found  in  that  country  scarcely  less  burdensome. 


512  OF   THE    FEUDAL    LAW*  [Lcct.  X. 

5  and  6.  Of  Wardship  and  Marriage.  The  intimate 
connexion  between  these  two  fruits  of  tenure  renders  it 
proper  that  we  should  consider  them  together. 

If  we  advert  to  the  relation  between  lord  and  vassal,  we 
perceive  at  once  that  when  estates  became  hereditary,  the 
lord  was  as  much  interested  in  securing  to  himself  the 
faithful  discharge  by  a  competent  tenant  of  all  the  feudal 
duties,  as  the  vassal  was  in  having  his  hereditary  rights 
fully  recognized  and  preserved.  The  most  effectual  mode, 
then,  of  protecting  the  interest  both  of  the  lord  and  the 
heir,  was  to  place  the  estate  and  person  of  the  heir  under 
the  custody  of  the  lord,  until  the  heir  came  of  proper  age 
to  take  care  of  them  both,  and  to  perform  iu  person  all 
that  the  feudal  bond  required  of  him. 

Wardship,  then,  was  the  lord's  right  to  the  care  of  a 
minor's  person,  and  to  the  profits  of  his  estate.  Marriage 
was  the  lord's  right  of  tendering  to  female  wards  a  person 
in  marriage,  whom  the  ward  could  not  reject  without  for- 
feiting to  her  lord  as  much  as  any  one  would  give  to  him 
for  the  alliance.  These  general  definitions  are  sufficiently 
accurate  for  our  present  purpose;  but  we  shall  find  that 
the  custody  of  the  person  did  not  uniformly  follow  that  of 
the  estate,  and  that  male  wards  were  also  sometimes  liable 
to  the  dictation  of  their  lords  as  to  whom  they  should 
marry.  The  rights  of  wardship  and  marriage  obtained 
only  in  Germany,  Normandy  and  England. 

As  lands  in  tenure  were  held  either  by  knight's  service 
or  soccage  service,  so  wardship  (or  guardianship,  which 
means  the  same  thing,)  was  of  the  same  two  kinds;  for 
there  were  guardians  and  wards  in  chivalry,  and  guardians 
and  wards  in  soccage.  Where  the  lands  were  held  by  mi- 
litary service,  the  heir  was  in  wardship  until  he  attained 
the  age  of  twenty-one  years;  and  this  was  called  wardship 
in  chivalry.  If,  therefore,  a  tenant  holding  land  by 
knight's  service,  died  leaving  his  heir  under  that  age,  the 


Lcct.  X.]  OF    THE    FEUDAL    LAW.  513 

lord  had  the  guardianship  of  his  lands  and  person  till  he 
arrived  at  age,  or  until  he  died,  and  in  the  meantime  the 
lord  appropriated  to  his  own  use  all  the  profits  of  the  es- 
tate, being  obliged,  however,  to  maintain  and  educate  the 
heir  in  a  manner  suitable  to  his  rank  and  condition.  The 
profits  of  the  estate  were  allowed  to  the  lord  without  any 
obligation  on  him  to  account,  and  this  was  conceded  on  the 
principle  that  the  profits  were  only  equivalents  for  the  du- 
ties, or  were  as  a  compensation  to  the  lord  for  his  care  in 
the  maintenance  and  education  of  the  ward,  and  also  to 
enable  the  lord  to  answer  to  the  king,  or  other  superior 
lord,  what  might  be  due  to  them. 

The  custody  of  the  heir's  person  was  conferred  on  the 
lord  because  the  law  considered  the  solemn  bond  between 
him  and  his  vassal  a  sufficient  assurance  of  the  ward's 
safety;  and  further,  because  the  lord  was  not  only  the 
most  competent  to  instruct  him  in  the  art  of  war,  but  was 
likewise  greatly  interested  that  he  should  be  thoroughly 
instructed  in  it.  But  this  custody  of  the  minor's  person 
was  only  in  case  the  father  was  not  living;  for  if  a  minor 
inherited  lands  during  the  lifetime  of  his  father,  which 
might  easily  occur,  the  father  was  guardian  by  nature, 
which  superseded  the  personal  guardianship  in  chivalry. 
Thus,  for  example,  where  A  is  grandfather  by  the  moth- 
er's side,  B  is  father,  C  is  mother,  and  D  is  son;  if  A, 
holding  lands  by  knight's  service,  dies,  and  C  is  dead,  D 
shall  inherit  the  land  of  his  grandfather  A,  but  the  ward- 
ship shall  be  divided.  The  grandfather's  lord  shall  take 
the  lands  in  wardship,  but  B,  the  father,  shall  have  the 
wardship  of  his  son's  person.  Again;  if  a  lord  granted  a 
military  feud  to  the  son  of  A,  and  this  son  died  without 
issue,  whereby  the  lands  descended  to  his  brother,  a  minor, 
the  lord  should  have  the  custody  of  the  land,  and  A,  the 
father,  would  have  the  custody  of  the  person.  So,  also,  if 
the  king  had  conferred  knighthood  on  a  minor,  the  guar- 
65 


5]4  •  OF    THE    FEUDAL    LAW.  [Lect.  X. 

dianship  ceased  both  as  to  the  person  and  the  land.  In 
England  this  principle  of  ttie  feudal  law  was  so  strongly 
objected  to  by  the  lords,  that  parliament  passed  an  act  for 
the  continuance  of  the  wardship  in  lands  notwithstanding 
the  minor's  subsequent  knighthood. 

When  lands  descended  to  a  female  ward,  as  she  could 
never  be  called  on  for  personal  services,  she  was  allowed  to 
furnish  a  substitute  when  she  obtained  her  majority;  but 
whilst  in  wardship,  the  lord  held  her  lands  on  the  same 
terms  as  in  male  wardships,  except  that  the  wardship  ter- 
minated at  her  age  of  fourteen,  which  in  England  was  ex- 
tended by  act  of  parliament  to  sixteen,  if  the  heiress  re- 
mained unmarried  till  that  time;  and  until  twenty-one.  and 
even  longer,  if  she  had  rejected  a  suitable  offer  of  mar- 
riage, made  to  her  by  her  lord. 

There  is  one  circumstance  very  peculiar  in  the  wardship 
both  of  knight's  service  and  of  soccage  hinds:    I  allude  U 
the  anomalous  nature  of  the   interest  or  estate  in  wardship. 
The  feudal  law,  in  all  other  cases,  carefully  distinguished 
the  jus  prqprietatis  in  lands,  (with  the  consequent  right 
of  reversion  or  escheat,  together  with  the  claim  to  services 
reserved  to  the  lord,  the  whole  of  which  were  embraced 
by  the  word  seigniory)  from  the  jus  posscssionix,  with  the 
pernancy  of  the  profits,  which  resided  in  the  tenant.      Hut 
in  the  case  of  wardship,  all  of  these  appear  to  have  been 
blended,  and  the  propriety  and   possession   were  united  in 
the  lord,  and,  apparently,  the  heir  had  no  estate,  or,  at  least, 
he  had  neither  seigniory,  possession  nor  profits.      Though 
the  law  restricted  the  duration  of  the  lord's  interest  to  the 
number  of  years  which  should  intervene  between  the  te- 
nant's death  and  the  heir's  majority,  yet  it.  vested  tie 
in  the  minor  heir  sub  modo,  that  is,  in  such  a  manni 
gave  him,  as  we  have  said,  neither  propriety,  p< 
nor  profits.     Still  the  lord's  estate  was  not  a  fee,  a  freehold, 
nor  even  a  term  fin  years;  but  it  was  a  species  of  chattel  in- 


J-eet.  \.;  OP    THE    FEUDAL    LAW.  515 

teresl  sui  generis.  The  lord  could  alienate  without  livery 
of  seisin,  and  without  license,  and  on  his  death,  during  the 
heir's  minority,  the  lands  descended  to  the  lord's  execu- 
tors, and  not  to  his  heir.  Hence,  the  estate  in  chivalry, 
both  as  to  the  lord  and  heir,  was  entirely  anomalous,  there 
being  features  in  it  which  appertain  to  no  other  estate 
known  to  the  law. 

By  the  charter  of  Henry  I.  of  England,  wardship  (which 
had  grown  to  be  the  most  oppressive  of  all  the  feudal  inci- 
dents) was  relinquished  by  the  crown,  and  the  heirs  of 
crown  vassals  were  during  their  minority  restored  in  a 
great  degree  to  that  allodial  property  in  their  lands  which 
had  so  generally  obtained  in  the  early  history  of  the  feudal 
ages.  As  the  crown  had  not  the  lands  in  wardship,  and  as 
the  minor  was  under  no  obligation  to  serve  his  lord  either 
in  person  or  by  substitute,  the  king,  by  relinquishing 
wardship,  restored  the  lands  to  the  state  of  pure  allodium, 
during  the  heir's  minority.  This  state  of  things  continued, 
however,  for  a  very  short  period;  for  in  the  reign  of  king 
John,  wardship  in  capite  had  become  so  firmly  reestablished 
that  the  crown  vassals  only  aimed  at  procuring  some  regu- 
lations to  mitigate  the  hardships  of  this  most  vexatious  of 
the  royal  prerogatives.  We  may  form  some  idea  of  the 
great  value  of  this  fruit  of  tenure  in  that  country,  when  we 
are  informed  that  Henry  III.  granted  the  wardship  of  Gil- 
bert de  Umfreville  to  Simon  de  Mountford  for  10,000 
marks;  a  sum  equivalent  at  this  time  to  perhaps  £200,000. 
We  have  stated  that  the  lord  had  the  custody  both  of  the 
person  and  lands  of  his  ward  in  chivalry:  but  this  was  the 
case  only  in  England;  for  in  France  and  Germany  the  land 
was  committed  to  the  care  of  the  minor's  next  heir,  and 
his  person  to  that  of  the  nearest  of  blood  who  could  not 
inherit  the  lands;  as  we  shall  presently  see  was  the  case  in 
England,  both  as  to  the  land  and  person,  in  case  of  soccage 
tenures. 


516  Of    THE    FEUDAL    LAW.  [Lect.  X. 

Having  dwelt  sufficiently  on  wardship  in  chivalry,  we 
proceed  to  inquire  briefly  into  the  nature  and  history  of 
Wardship  in  Soccage. 

We  have  seen  that  wardship  in  chivalry  was  the  lineal 
offspring  of  the  feudal  relation.  Public  policy  demanded 
that  the  ward  should  receive  a  military  education,  and  that 
his  estate  and  person  should  be  placed  in  the  charge  of  that 
lord  whom  he  might  be  called  to  serve  and  defend.  These 
considerations,  however,  did  not  obtain  in  the  case  of  the 
descent  of  soccage  lands  to  minor  heirs;  for  on  the  descent 
of  such  lands,  the  lord  was  only  interested  in  knowing 
that  the  estate  was  preserved  from  waste  or  decay.  We 
consequently  find  that  in  England  the  lord  had  the  ward- 
ship neither  of  soccage  lands  nor  of  the  person,  but  that 
the  charge  of  both  was  given  to  the  minor's  next  of  kin, 
who  by  no  possibility  could  inherit  the  estate.  Thus, 
for  example,  if  soccage  lands  descended  to  A  ex  parte 
maternd,  none  of  his  maternal  relatives  would  be  entitled 
to  the  guardianship  of  the  land  or  person,  but  the  wardship 
would  vest  in  the  next  of  blood  ex  parte  paternd. 

The  following  are  some  of  the  leading  doctrines  of  the 
English  law  as  to  this  species  of  wardship;  and  they  will 
generally  be  found  to  originate  in  feudal  principles. 

1.  Soccage  guardianship  or  wardship  sprung  wholly 
from  tenure;  and  yet  it  is  now  said  to  embrace  heredita- 
ments which  do  not  lie  in  tenure,  and  even  copyhold  lands 
and  personal  estate.  Of  this  opinion  is  Mr  Hargrave,  the 
learned  annotator  on  Lord  Coke's  1st  Institutes,*  contra- 
ry to  that  advanced  by  Chief  Justice  Vaughan.t 

2.  Soccage  wardship  takes  place  only  on  a  descent.  It 
was  at  all  times  conceded  that  wardship  in  chivalry  was 
consequent  only  on  a  descent  of  lands,  and  never  on 
a  purchase;   but  it  had  been  supposed  by  some  that  if  a 

*  Coke  upon  Littleton,  91  b.  note  9,  116.  a. 
i  Vaughau's  Reports,  1S6. 


Lect.  X.]  OF    THE    FEUDAL    LAW.  517 

minor  should  acquire  soccage  lands  in  any  other  way  than 
by  descent,  he  would  be  in  wardship.  This  doubt  was 
not  settled  to  the  contrary  till  the  29th  of  Charles  II.* 

3.  As  soccage  wardship  belongs  to  the  next  of  kin 
(without  distinction  as  to  whole  or  half  blood)  who  can  by 
no  possibility  inherit  the  lands;  if  there  should  happen  to 
be  two  or  more  persons  in  equal  degree,  and  of  course 
equally  entitled,  he  who  first  gains  the  minor's  person, 
shall  have  the  wardship  of  his  lands  also;  the  maxim  in 
this  case  being,  "?7ielior  est  conditio  possidentis." 

4.  But  if  the  conflicting  claimants  in  such  a  case  be  the 
minor's  lineal  ancestors,  and  the  heir's  person  has  not  been 
gained,  the  law  prefers  the  father,  or  other  male  ancestor; 
and  if  they  be  his  collateral  relatives,  the  eldest  brother 
or  sister  is  preferred. 

5.  If,  however,  the  minor  inherits  lands  both  ex  parte 
putemu  et  maternd,  it  being  then  very  probable  that  none 
of  his  kin  can  be  found  who  would  be  incapable  of  inhe- 
riting, the  law  permits  the  custody  of  the  person  to  re- 
main with  him  who  first  gains  it;  and  the  wardship  of  the 
paternal  lands  vests  in  the  next  of  kin  ex  parte  maternd, 
and  so,  vice  versa,  as  to  those  descending  from  the  maternal 
line. 

6.  Should  the  minor  so  inherit  the  lands  as  to  let  in  the 
paternal  and  maternal  heirs  successively,  preferring,  how- 
ever, the  former  to  the  latter,  (which  would  be  the  case 
where  lands  are  inherited  from  a  brother  who  had  pur- 
chased the  estate)  it  has  never  yet  been  judicially  settled 
in  such  a  case,  who  would  be  entitled.  Here,  as  there  is 
no  next  of  kin  who  cannot  inherit  to  the  minor,  we  pre- 
sume the  next  male  heir  ex  parte  pat  emu  would  have 
the  better  claim ;  unless  the  principle  of  gaining  the  infant's 
person  should  be  allowed  in  this,  as  in  some  other  cases. 

*  2  Modern  Report?,  176." 


518  01    THE    FEUDAL    LAW.  [Lect.  X. 

7.  Soccage  wardship  is  not  assignable,  forfeitable  or  in- 
heritable, as  guardianship  in  chivalry  was:  for  the  former 
is  a  personal  trust  for  the  infant's  benefit,  whereas  the  lat- 
ter was  always  regarded  as  a  valuable  estate,  mainly  for  the 
lord's  benefit.  In  case,  therefore,  of  the  death  or  incapa- 
city of  a  soccage  guardian,  the  wardship  devolves  on 
others,  according  to  the  rules  which  have  already  been 
stated.  * 

8.  A  guardian  in  soccage  is  a  mere  trustee,  who  is  held 
to  a  strict  account  to  his  ward  when  he  arrives  at  age; 
whereas  the  guardian  in  chivalry  received  all  the  profits  of 
the  estate,  after  suitably  educating  and  maintaining  his 
ward. 

9.  Soccage  wardship  terminates  when  the  heir  attains 
the  age  of  fourteen,  at  which  time  he  may  enter  into  the 
lands,  or  appoint  a  new  guardian,  or  continue  the  old  one. 
It  has  been  contended  by  some  authors,  that  this  guardian- 
ship does  not  determine  till  the  age  of  twenty-one,  unless 
there  be  another  guardian  ready  to  succeed,  elected  b}T  the 
minor,  or  chosen  by  the  father  under  the  power  of  appoint- 
ing a  testamentary  or  other  guardian,  conferred  by  the 
statute  12  Charles  II. t  At  all  events,  if  no  testamentary 
guardian  be  appointed,  the  court  of  Chancery  will,  on  ap- 
plication, appoint  a  guardian  over  the  person  and  property 
until  the  heir  attains  the  age  of  twenty-one. 

10.  If  after  the  age  of  fourteen  the  minor  does  not  enter, 
and  no  guardian  is  chosen  by  him  or  his  father,  but  his 
former  guardian  continues  in  possession,  receiving  the  pro- 
fits, it  was  at  one  time  a  question  of  considerable  doubt, 
how  the  minor  is  to  compel  the  guardian  to  respond  for 
receipts  after  the  age  of  fourteen,  seeing  that  the  guardian- 
ship had  legally  determined  at  that  period.  It  was  con- 
ceded that  the  action  of  account  would  not  lie  against  him 

*  Yaughan's  Reports,  181.     PlowderTs  Reports,  293. 
(  Andrew's  Reports.  313. 


Lect.  X.]  OK    THE    FEVDAL    LAW.  51f» 

as  guardian.  It  was  also  admitted  that  laches  or  neglect 
should  not  be  imputed  to  the  infant,  who,  though  of  an  age 
in  which  he  was  competent,  not  only  to  appoint  a  new 
guardian,  but  also  to  contract  marriage,  yet  would  be  pre- 
sumed by  the  law  unacquainted  with  matters  of  account, 
and  other  legal  rights.  In  order,  therefore,  fully  to  pro- 
tect the  minor  in  such  case,  the  law  resorted  to  a  reasonable 
fiction,  and  supposed  that  after  the  age  of  fourteen  he  had 
appointed  his  former  guardian  his  bailiff  or  receiver;  and 
therefore  gave  to  the  infant  an  action  of  account  against 
him,  not  indeed  as  guardian,  but  as  his  receiver. 

11.  If  the  guardian  in  soccage  neglects  the  estate,  and  a 
stranger  enters  on  the  lands,  and  receives  the  profits,  it  has 
been  held  that  such  person  shall  not  be  regarded  as  a 
wrongdoer,  or,  as  the  law  would  call  him,  an  abator,  which 
would  have  been  the  case  had  the  heir  been  of  full  age. 
But,  on  the  contrary,  the  law  will  presume  that  the  stran- 
ger's act  proceeded  from  kindness,  and  in  order  to  remedy 
the  neglect  of  the  guardian.  By  this  fiction,  moreover, 
the  stranger  is  supposed  to  be  a  guardian,  and  the  heir,  after 
he  has  attained  the  age  of  fourteen,  may  charge  him  as  such 
in  an  action  of  account,  and  recover  all  the  profits  received 
by  the  stranger. 

12.  In  the  last  place,  a  guardian  in  soccage  is  liable  to  the 
strictest  account  to  his  ward;  not  only  of  all  the  profits  ac- 
tually received,  but  of  those  which  he  ought  to  have  re- 
ceived. This  was  strongly  illustrated  in  the  case  of  the 
valor  maritagii,  which,  if  received  by  the  guardian,  was 
to  be  accounted  for;  and  if  none  were  received,  he  was 
personally  responsible  for  what  he  might  have  received. 

The  next  feudal  incident  on  which  we  have  to  remark, 
is  that  of  Marriage.  We  have' already  stated  that  Mari- 
tagium  was  anciently  the  lord's  right  to  tender  a  husband 
to  his  female  ward,  holding  lands  by  the  tenure  of  knight's 
service,  and  also  of  disposing  of  her  in  marriage,  in  consi- 


520  0F    THE    FEUDAL    LAW.  |Lcct.  X. 

deration  of  such  a  sum  of  money,  or  any  thing  else,  as  he 
could  obtain  from  the  intended  husband  or  his  relatives. 
This  became  a  very  profitable  fruit  of  tenure,  and  a  very 
oppressive  one  to  the  tenant. 

After  feuds  had  become  descendible  to  females,  the  same 
necessity  which  forbade  vassals  from  alienating  without  the 
lord's  consent,  (viz.  to  prevent  the  introduction  into  the 
feudal  society  over  which  the  lord  presided,  of  any  person 
who  might  be  hostile  to  his  interests,)  also  rendered  it  es- 
sential that  his  female  tenants  should  not  introduce  such 
persons  by  their  indiscreet  or  unsuitable  marriages.  But 
this  motive,  so  important  in  those  perilous  times,  soon 
gave  way  to  others  of  a  very  different  kind.  The  female 
wards  were  in  fact  exposed  to  the  highest  bidder.  In 
many  cases,  the  lord  being  unwilling  to  yield  up  the  land 
as  early  as  his  ward's  age  of  fourteen,  declined  making  any 
offer  of  marriage,  or  placed  so  high  a  price  on  her  as  ex- 
cluded the  possibility  of  her  marrying.  At  first,  also,  this 
right  of  marriage  was  confined  to  female  heirs;  but  in  the 
reign  of  the  third  Henry,  the  lords,  by  a  forced  construc- 
tion of  Magna  Charta,  which  enacted  that  'heirs  should  be 
married  without  disparagement,'  contended  that  this  word 
'heirs'  embraced  males  as  well  as  females;  whereas  it  is 
manifest  the  statute  intended  to  soften  the  former  law, 
which  related  only  to  females,  and  merely  to  enact  that 
such  wards,  when  given  in  marriage  by  their  lords,  should 
not  be  disparaged;  and  by  no  means  to  confer  a  new  right, 
or  to  embrace  those  who  had  never  before  been  subjected 
to  this  feudal  restriction;  especially  when  we  know  that 
the  lord's  right  to  interfere  in  the  marriage  of  his  female 
tenants,  was  originally  introduced  for  no  other  purpose 
than  to  secure  him  against  husbands  selected  by  his  female 
wards  from  hostile  clans. 

Numerous  laws  were  made  from  time  to  time  to  correct 
the  cruel  abuses  of  this  privilege      Marrying  without  the 


Lect.  X.]  OF    THE    FEUDAL    LAW.  521 

lord's  consent  induced,  at  one  period,  an  absolute  forfei- 
ture of  the  ward's  estate  to  the  lord.  But  by  the  statute 
of  Merton,  the  penalty  was  fixed  at  double  the  value  of 
the  marriage,  to  be  received  out  of  the  profits  of  her  land, 
which,  for  that  purpose,  might  be  retained  after  her  age  of 
twenty-one,  and  until  paid.  By  the  same  statute  it  is  also 
provided,  that  if  the  lord  should  have  his  ward  married 
to  her  disparagement,  she  being  at  the  time  under  fourteen, 
he  should  forfeit  his  wardship;  and  that  if  the  ward  should 
merely  refuse  a  suitable  offer,  but  did  not  subsequently 
marry  against  her  lord's  consent,  she  should  then  forfeit 
only  the  single  value  of  the  marriage.*  I  am  not  disposed 
to  pursue  this  obsolete  subject  any  further,  especially  as 
marriage  and  wardship  were  wholly  abolished  in  England 
by  the  statute  12  Charles  II.  by  reason  of  the  conversion 
of  knight's  service  into  free  and  common  soccage. 

r ,,  Division  VI.     Before    I   proceed  to 

Causes  of  the  rise  ^xrxo^   x  t 

of  the  Landed  Aris-  the  main  object  of  the  present  division  of 

tocracy,  and   of  the  subject    which  is  to  inquire  into  the 

orders  and  ranks  of  J          J 

Citizens.    Privileges  sovereign   privileges   claimed   and  exer- 

exercised     by    lords  cjge(j    by    the    great    feu(]al    lorcls    within 

within   their    fiefs —  .               _       „    ,     ,,          , 

viz.  Coinage  of  mo-  their  respective  fiefs,  I  shall  endeavour 
ncy,  Private  war,  Tax-  ^0  trace  the  rise  and  progress  of  the  feu- 

ation         Ration,  aristocracy      and    0f  that    distinction 

and  Judicial  junsdic-  J  > 

tion.  between  the  high  and  low  born   which 

affected,   not  only  the  personal  respect,  but  the  legal  and 
constitutional  rights  of  both. 

This  distinction  was  certainly  unknown  to  the  Franks, 
among  whom  every  man  was  a  soldier,  and  every  soldier  a 

*  By  the  word  'disparagement,'  used  by  the. statutes  of  Magna  Charts 
and  of  Merton,  is  meant  an  unsuitable  alliance,  which  Lord  Coke,  with 
his  usual  quaint  and  methodical  minuteness,  divides  into  four  classes. 
This  disparagement,  for  which  the  heir  may  refuse  to  marry  the  person 
tendered  to  her,  may  be,  according  to  the  learned  author; 

1.  Propter  vitium  animi;  as  where  he  is  an  idiot  or  lunatic. 

2.  Propter  vitium  sanguinis;  as  if  the  husband  offered  be  a  villain:  the 

G6 


522  OF    THE    FEUDAL    LAW.  [Lect.  X. 

freeman;  and  who  were  all,  not  only  independent  proprie- 
tors, but  electors  of  the  chief  or  king  under  whom  they 
went  forth  to  conquest;  a  state  of  civil  and  political  rights 
extremely  different  from  the  constitution  of  a  feudal  state, 
whose  various  ranks,  together  with  their  respective  privi- 
leges, we  shall  hastily  notice. 

The  feudal  aristocracy  doubtless  owed  its  commence- 
ment to  individual  wealth,  and  this  was  generally  the  lot 
of  the  beneficiaries  of  the  crown,  who  partaking  not  only 
of  the  royal  bounty,  but  of  the  royal  counsels,  and  the  dig- 
nities of  the  state;  gradually  rendering  their  fiefs  heredi- 
tary; and  but  seldom  alienating,  nay  even  prohibited  to 
alienate,  their  estates;  were  thus  kept  conspicuous  in  the 
public  eye,  and  added,  every  generation,  to  their  impor- 
tance. Territorial  wealth,  also,  is  the  best  suited  to  impart 
influence  to  its  possessors.  The  counts  and  dukes,  usur- 
ping their  dignities  as  hereditaments,  were  at  the  head  of 
these  dignitaries,  and  often  assumed  titles  from  their  coun- 
ties or  dutchies:  In  this  they  were  imitated  by  the  inferior 
barons,  who  took  their  names  of  distinction  from  some 
town  or  castle.  The  feudatories  too,  whether  small  or 
large,  were  all  soldiers,  the  source  of  no  little  respect  in  a 
turbulent  age;  and  thus  it  was  that  the  mixed  considera- 
tions of  birth,  tenure,  occupation  and  wealth  gave  durable 
respect  and  power  to  particular  families. 

This  was  ascertained  and  strengthened  yet  more  by  the 
adoption  of  surnames,  and  of  armorial  bearings,  which 
probably  took  place,  the  firsr  in  the  eleventh  century, 
when  the  nobility  began  to  add  the  names  of  their  estates 

child  of  a  person  attainted  of  treason  or  felony;  a  bastard;  an  alien,  or  the 
child  of  an  alien!  a  haberdasher!  &c. 

3.  Propter  vitium  corporis,  as  monsters;  deformed  or  diseased  persons; 
squinters!  persons  blind,  deaf  or  dumb,  consumptive,  palsied  or  impotent. 

4.  Propter  jacluram  privilegii;  as  where  Ihc  individual  offered  had  been 
once  married.  Finally,  the  offer  must  be  competens  marilagium  absque  dh- 
iparagalone. 


l*Ct  X.]  OF    THE     FEUDAL     LAW.  523 

to  their  own,  and  to  transmit  to  their  posterity  any  fortui- 
tous appellation  they  might  acquire;  the  second,  by  private 
families  at  least,  about  the  commencement  of  the  thir- 
teenth century. 

The  origin  of  armorial  bearings  is  variously  explained. 
Emblems  somewhat  similar  had  been  very  generally  used; 
but  the  introduction  of  these  bearings  has  been  attributed, 
sometimes  to  the  tournaments,  wherein  champions  were 
distinguished  by  some  striking  device;  sometimes  to  the 
crusades,  where  the  mixed  multitude  of  the  armies  required 
distinctive  tokens;  and,  lastly,  by  Villaret  they  have  been 
attributed  to  the  separation  of  the  same  family  by  settle- 
ments in  Palestine,  which  rendered  these  bearings  neces- 
sary for  the  preservation  of  the  family  connexion.  The 
loftiness  of  birth  being  thus  rendered  more  clearly  tracea- 
ble, the  high  born  and  the  ignoble  were  effectually  distin- 
guished. On  the  former  were  conferred  all  offices  of  trust 
and  power,  except  legal  offices.  Originally,  a  plebeian 
could  not  possess  a  fief;  though  in  France  the  land  itself 
carried  an  ennobling  quality,  at  least  after  being  possessed 
for  three  generations.  Gentlemen  never  exercised  any 
trade;  children,  in  order  to  inherit  any  territory  held 
immediately  of  the  empire,  must  have  been  born  of  no- 
ble parents  on  both  sides;  and  though  in  France  gen- 
tlemen were  held  noble  for  the  purpose  of '  inheritance, 
and  exemption  from  tribute,  they  could  be  received  into  no 
order  of  chivalry.  All  baronies  were  originally  by  tenure 
of  land;  but  the  kings  of  France,  before  the  close  of  the 
thirteenth  century,  assumed  the  privilege  of  creating  no- 
bles without  regard  to  tenure  of  land;  an  innovation  of 
great  influence  in  diminishing  the  power  of  the  territo- 
rial aristocracy,  and  strengthening  that  of  the  throne. 

Thus,  then,  ail  those  who  in  France  held  lands  imme- 
diately of  the  crown,  whatever  title,  (as  duke  or  count, 
for  instance,)  they  might  bear,  were  comprised   in  the  or- 


524  OF    THE    FEUDAL    LAW.  [Lcet    X. 

der  of  barons.  These  were  originally  the  Pares  or  peers 
of  the  king's  courts;  they  had  the  right  of  carrying  their 
own  banner  in  the  field,  and  possessed  the  higher  as  well 
as  the  lower  territorial  jurisdiction.  To  these  correspond 
the  Vavassores  Majores,  and  Capitanei  of  the  Empire. 
Subordinate  to  them  were  the  vassals  of  this  high  nobility, 
termed  Vavassors  on  the  continent,  and  known  sometimes, 
though  rarely,  by  that  name  in  England.  The  Chatelains 
were  also  Vavassors;  but  having  fortified  houses,  and  am- 
pler rights  of  territorial  justice,  they  were  somewhat  higher 
in  the  scale  of  tenure.  When  the  personal  nobility  of  chi- 
valry obtained,  the  vavassors  who  obtained  knighthood 
were  called  Bachelors;  such  as  had  not  that  honour, 
Squires.  The  Prelates  and  Moots  were  also  included 
in  the  ranks  of  the  feudal  nobility:  they  swore  fealty  to 
the  king  or  lord,  received  homage  of  their  own  vassals, 
and  exercised  the  same  authority  and  jurisdiction  as  the 
lay  lords;  and,  though  not  originally  obliged  to  military 
services,  they  partook  of  the  martial  spirit  of  the  times. 
To  avoid,  however,  this  military  service,  or  the  pecuniary 
commutation  of  it,  the  prelates  introduced  the  tenure  of 
frankalmoigne,  which  includes  no  obligation  but  that  of 
saying  mass  for  the  benefit  of  the  family  of  the  grantor  of 
the  feud. 

The  classes  below  the  gentry  were  distinguished  into 
Freemen  and  Villains:  of  the  first  were  the  inhabitants  of 
chartered  towns,  called  Citizens  and  Burghers;  the  Soc- 
cage?'S,  whose  tenure  was  free,  though  not  noble;  and  last- 
ly, the  tenants  for  life,  called  Freeholders,  from  whom 
sprang  the  yeomanry  of  England.  On  the  continent,  the 
mere  freemen  were  not  so  distinguishable,  because,  from 
their  slight  estimation,  they  were  often  confounded  with 
the  villains;    yet  it  is  evident  they  existed  there. 

The  second  class,  viz.  the  villains,  though  all  alike 
obliged  to  remain  on  their  lord's  estate;   though  precluded 


Lect.  X.]  OF    THE    FEUDAL    LAW.  525 

from  selling  the  lands  on  which  they  lived;  and  though 
the  lord  might  at  any  time  reclaim  their  persons;  still 
differed  in  their  actual  conditions.  One  kind,  called  Serfs 
in  France  and  Germany,  could  neither  acquire  nor  inherit 
property,  and  were  themselves  liable  to  be  conveyed  to 
strangers,  apart  from  the  land.  These,  in  England,  were 
called  villains  in  gross.  Their  services  were  not  only  in- 
determinate, but  ignoble;  such  as  the  felling  of  timber, 
the  carrying  of  manure,  the  repairing  of  roads,  &c.  The 
others,  who  were  merely  villains,  were  bound  only  to  fixed 
duties  and  payments,  generally  of  the  same  description;  but 
according  to  the  opinion  of  some  writers,  their  estates  es- 
cheated, on  death,  to  their  lord.  The  children,  in  both 
these  degrees  of  servitude,  followed  the  condition  of  the 
mother,  except  in  England,  where  they  followed  the  fa- 
ther's, the  well  known  rule,  partus  sequitur  ventrem, 
having  been  rejected  in  that  country.  Such  were  the  res- 
pective personal  privileges  of  the  gentry  and  of  the  low 
born;  and  it  is  comprehensible  enough  how,  when  great 
wealth  and  high  dignities  were  superadded  to  those  of  the 
great  barons,  they  acquired,  especially  in  France,  that  large 
territorial  influence  which  in  fact  converted  them  into  so 
many  petty  princes. 

Having  dwelt  sufficiently  on  the  rise  of  the  feudal 
aristocracy,  and  of  the  various  ranks  in  society,  I  shall,  as 
before  promised,  examine  the  more  important  of  those  pri- 
vileges which  the  lords  or  great  feudatories  exercised  with- 
in their  fiefs.  These  may  be  classed  under  the  five  follow- 
ing heads;  Coining  money;  Private  War;  levying  Taxes; 
Legislation;  and  Judicial  Jurisdiction.  How  extremely  in- 
dependent these  feudatories  were  of  the  crown,  will  ap- 
pear from  a  short  examination  of  these  sovereign  powers. 

1.  They  possessed,  and  of  course  abused,  the  important 
prerogative  right  of  coining  money.  This  right,  however, 
was   always    very   reluctantly   accorded    to   them    by   the 


526  OP    THE    FEUDAL    LAW.  [Lect.  V. 

crown;  for  we  find  that  by  a  capitulary,  even  as  early  as 
Charlemagne,  the  circulation  of  any  money  which  had  not 
been  stamped  at  the  royal  mint,  was  expressly  forbidden. 
About  the  beginning  of  the  tenth  century,  the  barons  is- 
sued money  with  no  other  mark  or  stamp  than  their  own. 
But  Louis  IX.  politically  enacted  that  the  royal  money 
should  circulate  within  the  domains  of  the  barons,  concur- 
rently with  their  own;  and  Philip  the  Fair  established  of- 
ficers of  inspection  in  every  private  mint.  No  subject 
in  England  ever  enjoyed  or  claimed  the  right  to  coin  mo- 
ney without  the  royal  stamp  and  superintendence,  though 
they  sometimes  usurped  the  privilege  in  fact. 

2.  The  right  of  waging  private  war  is  the  next  privilege 
which  claims -our  attention.  This  customary  right  arose 
out  of  the  manners  of  the  ancient  Germans,  among  whom 
revenge  of  injuries  was  a  private  and  personal  right.  After 
their  settlement  in  the  provinces  of  the  Empire,  the  causes 
of  quarrels  multiplied;  and  their  fury  and  extent  augment- 
ed proportionably  with  the  progress  of  the  beneficiary  es- 
tates, which  placed  the  vassals  under  the  same  obligation 
of  revenging  the  wrongs  of  their  lords,  as  once  had  been 
confined  to  their  kindred.  Such  was  the  weakness,  too, 
of  the  royal  authority,  and  of  the  law,  that  the  feudal  no- 
bles might  in  truth  be  regarded  as  so  many  persons  in 
a  state  of  nature.  Conformable  to  this  idea  was  the 
restriction  of  the  right  of  private  war  to  the  noble  or  gen- 
tle of  birth;  for  the  disputes  of  slaves,  villains,  inhabitants 
of  towns,  and  freemen  of  inferior  condition,  were  to  be 
decided  only  in  courts  of  justice:  nay,  even  the  disputes  of 
gentlemen  with  the  base  born-  were  to  be  thus  decided, 
and  not  by  personal  combat.  The  dignified  ecclesiastics, 
however,  claimed  this  right,  but  exercised  it  by  their  ad- 
vocates or  vidames,  persons  of  rank  and  reputation  who 
espoused  their  cause,  and  fought  their  battles.  It  was  even 
the  care  of  the  laws  to  determine  to  what  degrees  of  kin- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  527 

dred  the  right  extended,  and  to  enforce  the  kindred  to  take 
part;  and  the  right  of  private  war,  and  the  obligation  of 
uniting  in  it,  were  ascertained  by  the  same  degrees  of  affi- 
nity and  consanguinity  within  which  the  church  prohibited 
the  marriage  of  persons. 

Nothing  could  be  more  calamitous  than  the  consequences 
unavoidably  flowing  from  this  barbarous  privilege.  Being 
nourished  by  feudal  obligations  arising  out  of  the  tenure  of 
lands,  we  even  at  this  day  speak  of  feuds  as  synony- 
mous with  deadly  quarrels;  the  land  and  its  tenure 
giving  name  to  one  of  the  best  established,  but  most  fatal 
of  the  privileges  we  are  considering.  What  methods  were 
taken  to  lessen,  and  finally  to  abolish  this  right,  so  fatal  to 
morals  and  the  peace  of  society,  will  be  seen  hereafter. 

3.  The  next  privilege  was  that  of  levying  taxes.  The 
kings  of  France,  in  regard  to  taxation,  stood  on  no  higher 
grounds  than  their  own  nobles.  Aids,  reliefs,  the  rights 
of  toH,  of  customs,  alienage,  (aubaine)  even  the  enjoyment 
of  the  temporalities  of  ecclesiastical  benefices,  were  pos- 
sessed by  them  alike.  The  king  himself  was  merely  a 
great  feudatory;  and  if  he  exacted  money,  particularly 
from  the  inhabitants  of  towns,  the  barons  and  suzerains  did 
the  same  in  their  own  fiefs.  The  system  of  taxation,  pro- 
perly so  called,  was  a  modern  invention,  the  joint  offspring 
of  rapacity  and  necessity. 

4,  We  are  now  to  speak  of  a  most  important  privilege 
of  the  feudal  lords,  viz.  that  of  legislation.  One  of  the 
most  striking  features  in  the  feudal  policy  of  France,  was 
the  absence  of  nearly  all  supreme  legislation.  After  the 
firm  establishment  of  fiefs  and  their  incidents,  this  was 
trulv  the  case  in  that  country,  during  the  period  of  nearly 
three  hundred  years.  The  barons  were  the  legislators  of 
their  baronies;  and  though  there  were  assemblies  of  the 
nation,  called  the  parliaments  of  the  Champ  de  Mars, 
from   their   being  held   in   the   month   of   March,   and   in 


528  OF    THE    FEUDAL    LAW.  [Lcct.  X. 

which  it  is  probable  that  every  allodial  proprietor  had  a 
right  to  vote,  yet  these  national  assemblies  ceased  to  be 
held  about  seventy  years  after  the  death  of  Charlemagne. 
The  latest  capitularies  made  in  these  assemblies,  are  those 
of  Carloman,  in  the  year  8S2.  Thenceforth  the  feudal 
lords  were  the  legislators,  as  well  as  the  judges  of  their 
dominions;  and  though  it  is  not  uncommon  to  find  ordi- 
nances for  the  regulation  of  large  districts  comprising  many 
baronies,  these  were  in  fact  compacts  of  several  indepen- 
dent powers,  entered  into  for  mutual  convenience,  and  not 
emanations  from  any  general  depository  of  the  legislative 
power. 

5.  Connected  with  the  privilege  of  legislation,  is  that  of 
judicial  jurisdiction,  which  came  to  be  exercised  to  a  great 
extent  by  the  barons  within  their  respective  fiefs.  Among 
the  Franks,  Lombards  and  Saxons  there  seems  to  have 
been  pretty  much  the  same  modification  of  the  judicial  au- 
thority. Every  ten  families  had  a  magistrate,  elected  by 
themselves,  to  decide  on  their  rights  and  their  disputes. 
This  was  4110  Decamis  of  France  and  of  Lombardy,  and  the 
Tithingman  of  England.  Next  was  the  Centenarius 
or  Hundredary,  chosen  by  a  hundred  families,  and  of  su- 
perior authority.  The  jurisdiction  of  these  petty  magis- 
trates was  generally  restricted  to  less  important  matters; 
for  in  the  weightier  ones,  or  in  appeals  from  the  lower  ju- 
risdictions, the  Count  was  the  judge.  He  was  appointed  by 
the  sovereign,  but  he  was  both  assisted  and  checked  in  his 
administration  of  justice,  by  assessors  called  Scabini,  who 
held  their  office  by  election,  or,  at  least,  by  the  consent  of 
the  people,  and  formed  a  kind  of  jury,  though  resembling 
more  closely  the  judices  selecti  who  sat  with  the  Roman 
Praetor.  An  ultimate  appeal  lay  to  the  Count  Palatine,  an 
officer  of  the  royal  household;  and  causes  were  some- 
times decided  by  the  sovereign  himself.  Charlemagne,  to 
prevent  abuse  and  mal-administration,  appointed  Missi  Tie- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  52  9 

gii,  judges  in  eyre,  who  held  assizes  from  place  to  place. 
What  is  here  said  as  to  the  judicial  arrangements  in  France, 
applies  in  some  degree  to  England  and  the  Empire,  in 
which  countries  inferior  jurisdictions  of  a  similar  charac- 
ter obtained. 

This  original  model  of  judicature  was  gradually  sup- 
planted by  the  territorial  jurisdiction  of  the  barons.  We 
early  find  inserted  in  grants  of  land,  an  immunity  from  the 
jurisdiction  of  the  royal  judges,  and  that  of  the  feudato- 
ries must  naturally  have  taken  its  place.  The  allodial 
tenants  were  exempted  of  course  from  all  but  the  king's 
jurisdiction;  but  when  sub-infeudation  became  almost  uni- 
versal, the  territorial  jurisdiction  must  have  become  pro- 
portiqnably  so.  Even  the  count  himself,  becoming  the 
suzerain  rather  than  the  governor  of  his  district,  altered  his 
tribunal  to  the  feudal  model.  Those  of  the  sovereign,  for- 
gotten like  his  laws,  gave  place  to  manorial  courts,  in 
which  the  rules  of  evidence  were  superseded  by  the  judi- 
cial combat,  or  by  some  other  appeal  to  what  was  called  the 
judgment  of  God;  and  the  laws  were  reduced  to  customs, 
as  various  as  the  numerous  baronies.* 

*  The  great  number  of  territorial  jurisdictions  which  obtained,  not  only  in 
France,  but  in  the  Netherlands,  Germany  &c.  necessarily  originated  a  great 
diversity  of  legislation,  customs,  and  judicial  procedure.  Frequent  colli- 
sions arose  from  this  diversity,  and  caused  the  occurrence  of  questions  of  ex- 
treme interest  respecting  jurisdiction.  A  marriage,  for  example,  valid  in  one 
place,  might  be  void  in  another;  a  divorce  granted  by  one  tribunal,  might 
not  be  respected  in  a  second;  a  will  executed  in  conformity  to  one  system 
of  laws,  might  not  correspond  with  the  requisitions  of  another;  a  contract 
might  be  affected  by  the  law  either  of  the  place  where  it  was  made,  or 
that  in  which  it  was  litigated,  or  that  in  which  it  was  designed  to  be  exe- 
cuted, or  that  in  which  the  subject  of  the  contract  was  situate,  or,  finally, 
that  of  the  domicil  of  one  or  both  of  the  contracting  parties:  and  so  as  to 
the  remedy,  and  various  pleas,  which  might  be  resorted  to  in  one  tribunal, 
and  not  in  another.  These  are  questions  of  intrinsic  difficulty,  on  which 
the  Continental  jurists  have  displayed  surprising  ingenuity  and  learning, 
unhappily  liUle  known  to  t'.ngli^h  and  American  lawyers.  The  vast  vari- 
67 


530  OV    THE    FEUDAL    LAW.  [Lect.  X. 

I  forbear  to  discuss  the  various  degrees  in  which  this 
right  of  judicature  was  enjoyed  by  the  owners  of  fiefs,  and 
which,  in  France,  were  divided  into  the  high,  the  middle, 
and  the  low  jurisdictions;  and  shall  conclude  this  subject 
by  remarking  that  it  was  rendered  by  one  circumstance 
less  tyrannical  in  its  operation  than  at  first  view  might  be 
supposed:  this  was,  that  it  was  generally  exercised  by  deputy. 
The  counts,  while  yet  officers  of  the  crown,  had  their  vis- 
counts; the  ecclesiastical  lords,  prohibited  by  the  canons 
from  inflicting  capital  punishment,  and  ignorant,  it  was  pre- 
sumed, of  the  laws  of  civil  rights,  had  their  advocates  or  vi- 
dames;  and  the  lay  lords  had  their  vicarii,  bailiffs,  provosts 
and  sub-seneschals.  Indeed,  in  later  times,  it  became  a  max- 

ety  of  baronial  and  provincial  customs,  laws  and  tribunals  in  France, 
rendered  these  conflicts  especially  frequent  in  that  country.  It  gave  rise 
to  a  body  of  learning,  and  of  refined  distinctions  as  to  the  extra-terri- 
torial operation  of  statutes,  which  the  lawyers  of  this  country  are  parti- 
cularly called  on  to  examine,  since  American  jurisprudence,  arising,  as 
it  does,  from  the  laws  and  customs  of  twenty-five  independent  sovereign- 
ties, is  not  likely  ever  to  become  a  very  homogeneous  system,  and  must  ne- 
cessarily give  rise  to  a  series  of  questions  very  similar  to  those  occasioned 
by  the  various  systems  of  laws  existing  in  continental  Europe.  I  am  hap- 
py to  say  that  this  subject  has  been  recently  taken  up  by  an  eminent 
American  civilian,  Mr  Livermore,  a  gentleman  very  favourably  known 
to  the  profession,  and  who  cannot  fail  by  such  a  work  to  increase 
the  obligations  he  has  already  conferred  on  it.  The  first  number 
only  of  his  work  has  yet  appeared.  It  is  designed  to  be  a  thorough 
investigation  of  this  intricate  and  delicate  subject,  a  terra  incognita  to 
most  of  the  lawyers  of  our  country,  and  particularly  to  those  who 
have  not  extended  their  researches  into  the  mixed  Roman  law  of  the  con- 
tinent. This  number  is  devoted  principally  to  the  statement  of  the  ques- 
tions; some  account  of  the  numerous  authors  who  have  treated  of  them, 
and  their  various  theories  on  the  subject;  the  criterions  by  which  we  may 
correctly  distinguish  between  real  and  personal  statutes,  and  their  effects; 
the  supposed  foundations  on  which  statutes  have  sometimes  an  extra-terri- 
torial operation;  the  recognition  of  foreign  laws  and  decisions  under  the 
doctrine  of  national  comity;  and  some  remarks  on  adjudicated  cases  on  these 
subjects  in  American  courts,  principally  in  Louisiana.  These  topics  arc  dis- 
cussed with  much  research,  and  great  clearness,  and  give  assurance  of  the 


Lect.  X.]  OF    THE     FKUDAI.     LAW.  531 

im  that  the  lord  could  not  sit  personally  in  judgment,  and 
that  the  lord's  vassals,  who  were  peers  of  his  court,  must 
assist  in  all  proceedings;  and  where  there  were  not  two 
vassals,  there  was  no  court,  because  there  were  no  peers. 

Such  were  the  privileges  of  the  landed  aristocracy  of 
the  feudal  nations;  privileges  which  constituted  every 
baron  of  note  an  independent  chieftain,  invested  in  fact 
with  the  powers  of  sovereignty. 

We  have  now  considered  the  origin  and  progress  of 
feuds,  their  nature  and  incidents,  and  the  power  which 
they  threw  into  so  many  hands.  We  forbear  to  insist  on 
the  strange  anarchy  which  the  very  symmetry  of  the  sys- 
tem produced;  or  to  enter  into  details  of  the  state  of  Eu- 
rope during  more  than  three  centuries. 

satisfactory  execution  of  the  remainder  of  the  work.  The  treatise  will  be 
among  the  most  valuable  known  on  the  subject,  perhaps,  in  any  country. 
The  student  may  hereafter  consult,  at  his  leisure,  Troullier's  Droit  Civil, 
torn.  10,  117.  Voet  De  Statutis.  Hertius  De  collisione  legum.  Emerigon 
des  Ass.  torn.  1.  c.  4,  sec.  4.  Huberus,  2  vol.  lib.  1,  tit.  3.  Rodenberg  De 
jure  quod  oritur  ex  statutorum  diversitate,  tit.  1,  cap.  1,  and  the  following 
English  and  American  authorities.  Sill  v.  Warwick,  1  Henry  Black- 
ttone's  Reports,  690.  Robinson  v.  Bland,  2  Burrow's  Reports,  1071.  Solo- 
mon's v.  Rice,  1  Henry  Blackstone's  Reports,  131.  Hunter  v.  Potts,  4  Term 
Reports,  182.  Phillips  v.  Hunter,  2  Hen.  Black.  402.  Melan  v.  Fitzjames,  1 
Bosanquet  &  Puller's  Reports,  138.  Selkrig  v.  Davis,  2  Dow's  Reports, 
230.  Dalrymple  v.  Dalrymple,  2  Haggard's  Reports,  54.  Pippon  v.  Pip- 
pon,  Ambler's  Reports,  25.  Bruce  v.  Bruce,  2  Bos.  &.  Pull.  229  in  notii. 
Norris  v.  Munford,  4  Martin's  Louisiana  Reports,  20.  Ranway  v.  Stevenson, 
5  Martin,  23.  Saul  v.  His  Creditors,  5  Martin,  569.  Fisk  v.  Chandler,  7 
Martin,  24.  Thuret  v.  Jenkins,  7  Martin,  318.  Bird  and  others  v.  Casital, 
2  Johnson's  N.  York  Reports,  344.  Holmes  v.  Remsen,  4  Johnson's  Chan- 
cery Cases,  460.  20  John.  Rep.  229.  Milne  v.  Morelon,  6  Binncy's  Penn- 
sylvania Rep.  353.  Harrison  v.  Sterry,  5  Cranch's  Rep.  Sup.  Court  U.  S. 
289.  Harvey  v.  Richards,  403.  Slocum  v.  Pomeroy,  6  Cranch,  221.  Sco- 
field  v.  Day,  20  Johnson,  102.  Goodwin  v.  Jones,  3  Massachusetts  Rep. 
577.  Grimshaw  v.  Bender,  6  Mass.  Rep.  157.  Dyk  v.  Kane,  1  Gallison's 
Rep.  371,  McCandlish  v.  Cruger,  2  Bay's  S.  Car.  Rep.  377.  Taylor  v.  Gear, 
Kirby's  Conn.  Rep.  313.  Lodge  v.  Phelps,  1  John.  Cases,  139.  McNeil  y. 
Colquhoun,  2  Hayward's  N.  Car.  Rep.  24. 


532  OF    THE     FEUDAL    LAW.  [Lect.  X 

A  very  important  inquiry  yet  remains  to  us,  namely,  by 
what  gradation  of  changes  the  feudal  monarchies  assumed 
their  present  structure,  and  how  this  unique  system  of  policy 
suffered  a  decline  equally  inevitable  from  its  nature,  con- 
formable to  the  ambition  and  rapacity  of  monarchs,  and  ne- 
cessary from  the  advancing  civilization  of  men.  We 
therefore  proceed  to  inquire  into  the  topics  of  the  next  di- 
vision of  our  subject. 
Progression  of  the       Division  VII.     We  may  consider  this 

feudal     system     to-  .  i  .  i        Ai 

,     .;         ,        extensive   subiect  under  three  important 
wards    its    modern  J  1 

form  and  aspect.  divisions;  1.  the  original  extent,  and 
progressive  enlargement  of  the  royal  authority;  2.  the 
constitution  of  the  national  councils,  and  the  mutations  of 
their  authority;  and  3.  the  extension  and  eventual  pre- 
dominance of  the  royal  judicial  jurisdiction  over  the  baro- 
nial and  territorial;  a  most  interesting  chain  of  subjects,  to 
which  our  limits  are  far  from  permitting  us  to  do  justice. 
(i.)   of  the  ori-       Under   the    first  race   of    the   French 

ginal    extent,    and  monarchs,  the  kings  were  elected  by  the 
progressive  enlarge- 
ment of   the  royal  people;    and   though,    under   the   second, 

authority.  the   choice  was   confined  to   a  particular 

family,  the  people's  consent  seems  to  have  been  necessary 
to  the  selection  of  any  one  of  that  family.  By  degrees, 
however,  this  selection  came  to  be  supposed  or  neglected, 
and  the  descendants  of  Hugh  Capet,  the  founder  of  the 
third  race,  succeeded  by  hereditary  right  to  whatever  share 
of  authority  they  were  permitted  to  wield  over  their  turbu- 
lent aristocracy.  Depending  almost  wholly,  however,  for 
revenue  on  their  own  domains,  and  commanding  no  forces 
but  the  feudal  militia,  the  right  by  which  they  held  the 
throne  was  of  but  little  moment,  since  the  authority  it  be- 
stowed was  so  limited  and  disputed.  Events,  however, 
perpetually  augmented  their  power.  The  accession  of  the 
Capets  added  large  fiefs  to  the  royal  possessions.  Under 
Charles  VII.    the  possessions   of   the  English  in    France 


Lect.  X.]  OF    THE    FEUDAL    LAW.  533 

were  wrested  from  them,  and  added  to  the  French  monar- 
chy.    The  very  struggle  to  regain  these  subserved  the  po- 
licy of  the  kings,  who  under  a  pretence,  very  just  in  truth, 
of  the  inefficiency  of  the  feudal  soldiery  for  ready  defence, 
introduced    troops  of  mercenaries,  and  eventually  stand- 
ing armies.     The  wealth  of  the  nobility  was  impaired  in 
these  wars;   their  fiefs  fell  to  female  heirs,  and  became  di- 
vided, or  they  escheated  for  the  want  of  heirs.     Louis  XI. 
almost  completed  the  ruin  of  the  aristocracy  by  disgracing 
them;    by  raising  obscure  persons  to  dignity  and  the  roy- 
al counsels;  by  tampering  with  the  national  assemblies,  and, 
finally,  by  the  acquisition   to  the   throne»of  foreign  domi- 
nions, viz.  of  Burgundy,  Provence,  Artois  and  Roussillon. 
Similar  causes  gave  stability  to  the  monarchy  of  Spain,  al- 
though, from  particular  causes,  it  was  later  in  obtaining  it. 
The   revolutions  of  the  imperial  authority  in   Germany, 
though  ascribable  to  the  same  general  causes,  will  be  better 
understood  when  we  come,  in  considering  the  changes  in 
the  legislative  power,  to  view  the  structure  of  the  Germa- 
nic body;  and  so  in  regard  to  England.      In  all  these  coun- 
tries, the  preponderance  of  the  royal  authority  grew  more 
out  of  the  personal  policy  and  resources  of  the  kings,  and 
the  encroachments  which,  in  consequence   of  them,  they 
were  encouraged  to  make,  than  out  of  the  consent  of  their 
subjects,  or  their  sense  of  their  propriety  or  necessity;  and 
the  consideration  of  the  two  succeeding  topics  will  exhibit 
the  character  and  success  of  this  royal  policy. 

(2.)  Of  the  consti-  The  government  of  the  barbarians  was 
tution  of  the  national  not  an  arbitrary  rule,  but  proceeded  on 
councils,  and  the  mu-  .  ... 

tations  of  the  legisla-  the  principle  of  a  free  and  equal  voice  in 

tive  power.  all  deliberations   for  the   common  good. 

We  have  mentioned  the  parliaments  of  the  Champ  de 
Mars.  Two  assemblies  were  held  annually.  In  the  first 
all  laws  for  the  public  benefit  were  enacted,  the  more  con- 
iiderable  persons  of  both  the  laity  and  clergy  deliberating, 


534  OF    THE    FEUDAL    LAW.  [Lect.  X. 

and  the  inferior  adding  their  consent,  and  sometimes  ven- 
turing to  discuss.  To  the  second  assembly  the  chief  men 
only,  and  officers  of  state  were  admitted;  their  province 
was  to  consult  on  the  more  urgent  affairs  of  government, 
which  might  concern  perhaps  the  execution  of  the  laws, 
or  foreign  policy. 

In  a  capitulary  of  Louis  the  Debonair,  containing  the 
instructions  given  to  each  count  to  bring  to  these  assemblies 
twelve  Scabini,  we  trace  the  first  germ  of  Representation; 
and  it  is  unquestionable  that  the  theoretical  consent  of  the 
people  was  necessary  to  legislation  during  the  reign  of  Char- 
lemagne and  his  "first  successors.  When  France  came  to  be 
divided  into  great  and  independent  fiefs,  we  hear  nothing 
of  these  national  assemblies.  While  every  baron  legislated 
for  his  domain,  the  king  had  a  royal  council  composed  of 
tenants  in  chief,  of  prelates,  and  household  officers.  Some- 
times, indeed,  the  kings  appear  to  have  acted  with  the  con- 
sent of  an  assembly  more  numerous,  and  particularly  sum- 
moned; as,  for  example,  on  the  undertaking  of  the  cru- 
sade of  Louis  VII.  and  the  imposition  of  the  Saladine 
tithe.  As  to  the  great  meetings  of  the  barons  at  their 
grand  festivals,  they  seem  to  have  been  affairs  of  pagean- 
try, and  were  seldom,  if  ever,  convened  for  any  purpose  of 
business. 

Thus,  there  appears  a  great  difference  between  the 
French  and  English  monarchies,  even  while  the  latter  was 
under  the  arbitrary  rule  of  the  Normans;  for  in  England 
there  was  always  a  parliament  of  the  great  lords  and  large 
proprietors.  Yet  the  government  of  the  Norman  sove- 
reigns was  the  stronger  of  the  two;  and  the  very  circum- 
stance of  the  unfrequent  attendance  of  the  French  peers  on 
the  king's  council,  proves  the  disorganization  of  the  mo- 
narchy. They  denied  the  coercive  authority  of  that  coun- 
cil; every  baron,  they  held,  was  sovereign  within  his  fief; 
and  the  king  could  not,  according  to  the  'Establishments 


Lect.  X.]  OF    THE    FEUDAL    LAW.  535 

of  St.  Louis/  declare  any  new  law  within  the  territory  of 
a  baron,  or  the  baron  in  that  of  his  vavassor.  Thus, 
the  kings  of  France  could  hardly  be  regarded  as  sove- 
reigns beyond  their  peculiar  domains.  When  circum- 
stances, indeed,  showed  the  necessity  of  enactments  ha- 
ving force  beyond  the  bounds  of  a  single  fief,  congres- 
ses were  sometimes  held  of  the  neighbouring  lords, 
wherein  resolutions  were  agreed  to,  which  each  was  to 
execute  within  his  own  fief;  and  the  ecclesiastical  councils 
sometimes  assumed  the  right  uf  a  more  general  legisla- 
tion; as,  for  example,  that  of  Troyes,  which,  composed  in 
part  of  laymen,  laid  a  fine  on  invasions  of  church  property; 
and  also  that  of  Toulouse,  prohibiting  the  erection  of  for- 
tresses, and  the  making  of  new  leagues,  and  ordaining  that 
judges  should  administer  justice  gratuitously. 

Thus,  then,  we  observe  two  distinct  epochs  in'  the  histo- 
ry of  legislative  authority  in  France.  In  the  first  is  to  be 
found  a  free,  and  in  some  degree  a  representative  legisla- 
tive body;  in  the  second,  a  division  of  that  power,  to- 
gether with  almost  all  others  essential  to  sovereignty, 
amongst  the  aristocratic  feudal  proprietors. 

But  as  such  a  state  of  misrule  could  scarcely  endure  long, 
so  the  attempts  of  the  kings  were  not  slow  nor  late  to  as- 
sume this  essential  prerogative  into  their  own  hands.  In 
the  year  1223  we  find  an  attempt  by  Louis  VIII.  under 
cloak  of  a  consent  of  the  barons;  yet  in  1269,  the  date  of 
the  'Establishments  of  St.  Louis,'  no  mention  is  made  of 
the  consent  of  the  barons,  and  perhaps  it  occurs  in  no 
subsequent  royal  ordinance.  In  the  ensuing  reign  of  Phi- 
lip the  Bold,  kingly  prerogative  had  so  far  gathered 
strength,  that  one  of  their  jurists  declares  that  when  the 
king  makes  an  ordinance,  not  specially  for  his  own  domi- 
nions, but  general,  it  ought,  to  run  through  the  kingdom, 
and  be  supposed  to  be  made  with  good  advice,  and  for  the 
common  benefit;  and  the  same  jurist,  Beaumanoir,  repeats 


536  OF    THE    FEUDAL    LAW.  [Lect.  X. 

this  doctrine,  with  the  additional  important  remark,  'that 
there  is  no  one  so  great  but  may  be  drawn  into  the  king's 
court  for  default  of  right,  or  for  false  judgment,  or  in  mat- 
ters affecting  the  sovereign. '  We  here  perceive  the  influ- 
ence of  the  king's  judicial  tribunal,  the  Parliament  of 
Paris;  and  we  shall  presently  consider,  under  the  ensuing 
head,  the  influence  of  this  court  in  confirming  the  legisla- 
tive authority  in  the  kings. 

Yet  the  power  of  this  or  of  any  other  tribunal  would 
have  been  very  insufficient  to  fortify  the  kings  in  this  as- 
sumption, but  for  the  ample  increase  of  the  royal  power 
from  the  time  of  Philip  Augustus,  who  reigned  more  than 
half  a  century  before  the  period  of  which  I  am  speaking. 
The  kings  ventured  on  acts  of  supreme  legislation  with 
great  reserve  at  first,  and  many  precautions  were  used  to 
prevent  alarm  in  their  subjects  at  this  exercise  of  a  new 
power.  They  pretended  sometimes  that  their  ordinances 
were  by  the  assent  of  the  barons,  or  the  chief  of  them;  at 
others,  they  urged  that  it  was  by  advice  of  grave  counsel- 
lors, who  were  often,  it  may  be  supposed,  persons  of  great 
power  and  consideration.  But  a  powerful  cause  of  the 
final  predominance  of  these  royal  enactments  over  the  ter- 
ritorial and  feudal  jurisdictions,  was  the  insufficiency  of 
the  latter  to  the  purposes  of  justice;  for  we  find  that  the 
first  assumption  of  jurisdiction  on  the  royal  part,  was  in 
cases  where  the  local  jurisdictions  could  not  minister  ade- 
quate justice;  and  as  the  people  gradually  found  the  ad- 
vantage of  appealing  to  laws  made  on  grave  advisement, 
and  with  a  view  to  a  more  general  policy,  the  Parliament 
of  Paris  had  abundant  opportunities  of  widening  insensi- 
bly the  boundaries  of  the  royal  legislative,  as  well  as  judi- 
cial power.  The  assumption  of  the  prerogative  of  taxa- 
tion, as  it  was  a  delicate  one,  was  the  last  in  order,  and 
certainly  the  most  important  in  its  effects. 


Lect.  X.]  OF    THE     FEUDAL     LAW.  537 

As  the  barons  originally  enjoyed  immunity  from  taxa- 
tion in  the  whole  extent  of  their  fiefs,  the  resources  of  Phi- 
lip the  Fair,  who  was  the  author  of  an  important  innova- 
tion, were  very  insufficient,  though  his  domains  included 
many  of  the  noblest  cities  of  France.  Having  first,  there- 
fore, employed  the  expedient  of  levying  taxes  within  the 
territories  of  his  vassals,  by  their  own  consent,  he  ventured 
on  the  convocation  of  a  representative  body  composed  of 
the  three  orders  of  the  nation,  and  termed  the  States  Ge- 
neral. They  were  first  convened  in  1302;  but  their  first 
grant  of  a  subsidy  was  in  1314.  Thus  arose  a  third  estate, 
besides  the  barons  and  clergy,  viz.  the  deputies  of  the 
towns,  endowed  with  new  franchises,  and  bearing  a  new 
relation  to  the  monarchy.  The  policy  of  Philip  in  this 
step  is  obvious.  He  diminished  the  influence  of  the  barons 
over  these  burgesses,  thus  brought  into  immediate  contact 
with  the  crown,  and  no  longer  yielding  their  contributions 
through  the  medium  of  their  lords;  whilst  he  might  expect 
those  contributions  to  be  larger  than  when  they  came 
through  a  discontented  aristocracy. 

Within  the  narrow  limits  to  which  I  am  necessarily  re- 
stricted, I  cannot  inquire  into  the  constitutional  rights  of 
these  States  General,  nor  trace  their  ineffectual  efforts  to 
add  to  their  right  of  granting  subsidies  to  the  crown,  some 
privileges  favourable  to  their  own  independence,  and  to 
limiting  the  power  of  the  throne.  These  would  seem,  as 
I  have  said,  to  have  been  very  ineffectual;  and  the  States 
General,  after  many  contests  with  the  sovereign,  seem  to 
have  answered  no  purpose  but  countervailing  the  opposi- 
tion of  the  aristocracy  to  the  crown,  and  then  to  have  fal- 
len into  the  same  insignificance.  In  course  of  time  they 
ceased  to  be  convened;  the  kings  assumed  to  themselves 
the  power  of  levying  taxes;  and  having  vanquished  the 
rights  and  spirit  of  the  aristocracy,  disregarded,  in  like 
manner,  the  privileges  and  independence  of  the  commons, 
68 


538  OF    THE     FEUDAL    LAW.  [Lect.  X. 

by  whose  aid  they  had  achieved  the  victory.  The  com- 
mons, indeed,  never  seem  to  have  had  in  France  the  con- 
sideration which  more  benign  causes  procured  them  in 
England,  nor  to  have  formed  at  any  time  an  essential  mem- 
ber of  the  constitution.  I  shall  postpone  what  I  have  to 
say  respecting  the  mutations  of  the  legislative  power  in 
Germany,  or  the  Empire,  until  I  have  taken  a  rapid  view 
of  the  changes  in  judicial  jurisdiction  in  France;  a  topic 
necessary  to  the  perfect  understanding  of  those  of  the 
legislative  authority  in  that  country. 
(3.)  Of  the  gradual       ^e  have  seen  that  the  barons,  among 

abolishment  of  ter-  their   other    rights,    possessed    exclusive 
ritorial    jurisdiction;    ..........  ,,     .  , 

,    e  i        .   ...      indicia!  jurisdiction  in  their  own  domains. 

and  of  the  substitu-  •>  J 

tion  of  royal  judi-  This,  like  the  others,  was  gradually  abol- 
cia  juris  ic  ion.  ished  by  the  policy  and  increasing  power 
of  the  kings;  the  first  step  in  which  was  the  enactment  of 
that  code  which  is  known  by  the  name  of  the  'Establish- 
ments of  St.  Louis.'  By  the  wisdom  which  distinguished 
the  rules  of  civil  and  criminal  procedure  in  that  code,  and 
the  principles  of  legal  decision,  (which  discouraged,  for 
example,  the  judicial  combat;)  by  the  adoption  of  a  wiser 
jurisprudence  in  the  royal  domains;  and,  finally,  by  making 
it  discretionary  with  the  litigants  in  all  civil  suits,  to 
adopt  the  law  of  the  'Establishments;'  St.  Louis  gradually 
wrought  a  change  which  the  gentler  manners,  and  dimin- 
ished superstition  of  the  times  promoted  and  corroborated. 
By  an  ordinance  in  1190,  nearly  a  century  before  the 
Establishments  of  St.  Louis,  Philip  Augustus  established 
bailiffs  or  seneschals,  who  acted  as  judges  for  the  king; 
and  every  barony,  as  it  became  reunited  to  the  crown,  was 
subjected  to  one  of  these  officers.  The  vassals,  therefore, 
whose  lands  depended  on  such  reunited  fief,  became  subject 
to  the  appellate  jurisdiction  of  the  royal  court.  In  many 
cases,  also,  which  were  termed  royal,  a  term  the  true  ex- 
tent of  whoso  meaning  was  kept  in  studied  ambiguity,  the 


Lect.  X.]  OF    THE    FEUDAL    LAW.  539 

territorial  court  was  held  to  be  incompetent;  and  these  en- 
croachments were  attended  by  two  other  very  important 
ones,  viz.  that  vassals  might  complain  in  the  first  instance 
to  the  king's  court;  and  that  in  all  cases,  the  royal  court 
might  take  cognizance  of  a  suit  unless  the  defendant  ex- 
cepted to  the  jurisdiction. 

The  Parliament  of  Paris,  as  we  have  before  mentioned, 
was  another  great  organ  of  the  kingly  jurisdiction.  This 
supreme  council  of  peers  was  the  great  judicial  tribunal  of 
the  French  crown,  from  the  accession  of  Hugh  Capet.  It 
was  originally  composed  of  the  king's  great  vassals,  peers 
of  those  who  wer£  to  be  tried  by  it,  and  also  of  the  house- 
hold officers.  But  when  the  business  of  this  court  became 
vastly  increased  by  the  multiplicity  of  appeals,  which  might 
originally  be  made  from  any  court  on  denial  of  justice,  and 
which  afterwards  were  much  augmented  by  those  which 
came  from  the  bailiff's  courts  just  spoken  of,  the  barons 
found  neither  leisure  nor  capacity  to  sit  there;  and  St. 
Louis,  anxious  for  regularity  and  wisdom  in  its  decisions, 
introduced  into  it  some  counsellors,  chiefly  ecclesiastics, 
to  act  as  advisers.  It  now  became  known  by  the  name  of 
the  Parliament;  and  though  for  some  time  ambulatory,  it 
sat  principally  at  Paris  during  the  thirteenth  century. 

The  character  of  a  feudal  court  was  soon  lost  in  this  sta- 
tionary parliament:  it  was  a  regular  tribunal,  and  not  a 
loose  aristocratic  assembly.  It  was  to  hold  two  sittings  in 
the  year,  and  was  composed  of  two  prelates,  two  counts, 
thirteen  clerks,  and  as  many  laymen.  The  nobility,  how- 
ever, grew  weary  of  attendance;  the  bishops  were  dismis- 
sed to  their  sees;  and  lawyers  gradually  engrossed  the 
whole  direction  of  the  tribunal.  With  them,  however,  sat 
the  lay  and  spiritual  peers  of  France,  a  title  no  longer  ap- 
plicable to  all  persons  coequal  in  tenure  under  the  king, 
but  to  twelve  great  feudatories,  six  of  them  ecclesiastical: 
this  number,  however,  was  augmented  by  successive  crea- 


540  OF    THE     FEUDAL     LAW.  [Lent.   X. 

tions.  A  judioial  body  thus  constituted,  was  necessarily 
important  and  respectable;  and  it  was  deemed  essential,  at 
least  as  early  as  the  close  of  the  fourteenth  century,  that 
the  king's  edicts  should  be  registered  on  its  records,  be- 
fore they  had  validity  as  laws.  This  privilege  was  often 
used  by  that  body  for  the  public  benefit;  it  frequently  set 
itself  in  opposition  to  royal  usurpation;  and  its  struggles 
just  before  the  commencement  of  the  French  revolution, 
are  well  known  to  modern  history. 

Thus,  then,  the  kings  regained  for  the  sovereignty  that 
right  of  dispensing  justice  which,  though  essential  to  the 
constitution  of  every  well  regulated  state*  had  been  wrest- 
ed from  it  by  the  territorial  privileges  of  the  feudal  barons; 
privileges  which,  we  have  seen,  were  the  growth  of  anar- 
chy and  barbarism.  The  steps  of  their  policy  were  slow 
but  certain;  and  received  force  from  their  augmenting  re- 
sources and  consequence.  We  have  already  remarked 
that  the  kings  first  assumed  jurisdiction  where  the  lords' 
courts,  from  some  particular  circumstance,  could  not  ren- 
der complete  justice  to  the  suitors.  This  was  a  plausible 
ground  for  the  assumption  of  jurisdiction,  and  proved  a 
principal  source  of  its  amplification.  An  appeal,  too,  was 
provided  on  the  ground  of  an  unjust  sentence;  whenever 
the  royal  prerogative  was  supposed  to  be  concerned;  and 
lastly,  where  the  suitors  had  election  to  decline  the  trial 
by  combat.  But  perhaps  as  powerful  an  instrument  as 
any,  in  the  augmentation  of  the  king's  general  jurisdiction, 
was  the  dignity  and  superior  regularity  of  the  royal 
courts.  Yet  as  the  king  could  not  decide  every  cause  in 
person,  the  next  natural  step  was  to  appoint  bailiffs  or  sen- 
eschals, with  right  of  jurisdiction  in  different  districts  of 
the  kingdom.  Royal  courts  thus  established  in  every 
quarter,  the  subjects  would  naturally  resort  to  them;  and 
as  the  administration  of  justice  by  the  barons  was,  in  the 
first  instance,  subject  to  several  limitations,  there  were  end- 


Lect.  X.]  OP    THE     FEUDAL    LAW.  541 

less  pretexts  for  obstructing  and  reviewing  their  proceed- 
ings. The  king's  supreme  court,  originally  ambulatory, 
became,  as  we  have  seen,  fixed  as  to  the  place,  and  regular 
in  the  time  of  its  meeting.  Skilful  persons,  also,  were 
then  selected  to  preside  in  it;  and  as  the  right  of  hearing 
appeals  was  its  essential  privilege,  the  final  decision  of  all 
causes  of  importance  was  eventually  brought  into  the  Par- 
liament of  Paris,  or  the  other  courts  constructed  by  the 
king  in  different  provinces.  To  this  important  acquisition 
to  the  royal  prerogative  in  the  dispensation  of  justice,  was 
added,  as  we  have  remarked,  another  not  less  important, 
viz.  its  legislative  power.  The  assent  of  turbulent  barons 
was  no  longer  deemed  requisite  to  the  promulgation  of  a 
law:  it  was  deemed  sufficient  that  the  decree  was  register- 
ed by  the  Parliament  of  Paris,  a  body  which,  though  it 
stood  often  in  the  way  of  the  violent  exercise  of  royal 
power,  was  manifestl)',  from  its  constitution,  too  much 
under  the  royal  control  not  to  strengthen  the  power  of  the 
sovereign  to  a  great  degree. 

There  was  one  other  material  circumstance  that  limited 
and  brought  into  disrepute  the  jurisdiction  of  the  barons, 
which  I  am  compelled  merely  to  mention,  but  which  is  am- 
ply treated  by  the  historians  of  this  period,  viz.  the  exemp- 
tion of  ecclesiastics  from  lay  jurisdiction,  and  the  establish- 
ment of  their  own  peculiar  courts.  The  forms  of  proce- 
dure in  these  clerical  tribunals  were  regulated  chiefly  by 
the  Roman  civil  code;  they  were  founded  on  obvious  prin- 
ciples of  equity  and  good  sense;  and  presented  a  regular 
system  of  decision  and  appeal.  They  were  therefore  pre- 
ferred, even  by  a  rude  people,  to  their  own  barbarous  and 
blind  feudal  jurisprudence;  and  the  ecclesiastics,  on  their 
part,  were  not  slow  to  fortify  this  influence.  They  ex- 
tended their  own  personal  exemption  from  other  ju- 
risdictions to  so  many  persons,  and  to  such  a  variety  of 
cases,  that  a  great  part  of  the  affairs  which  caused  litiga- 


542  OF    THE     FEUDAL    LAW.  [Lect.    X. 

tion,  were  drawn,  by  some  device  or  other,  within  their 
cognizance.  This  was  no  inconsiderable  aid  to  the  advan- 
cing refinement  of  those  ages;  and  to  the  establishment  of 
corporations  and  communities,  by  the  policy  or  indulgence 
of  the  kings,  or  both,  in  which  the  same  code  was  the 
basis  of  procedure  and  decision,  we  may  also  ascribe  a 
part  of  this  increasing  melioration. 

I  shall  be  excused  for  having  dwelt  so  long  on  these  mo- 
difications of  the  feudal  policy  in  France,  and  its  gradual 
change  into  the  form  which  it  wore  during  some  centuries 
prior  to  the  French  revolution.  For  it  should  be  remem- 
bered that  this  feudal  form  of  polity  being  common  to 
France  with  several  other  important  European  kingdoms, 
the  history  of  its  modifications  and  decline  in  one  of  them,  is 
in  fact  essentially  the  history  of  that  system  in  the  others. 

In  Germany  a  like  turbulence  and  confusion  produced  a 
correspondent  change  in  the  oiiginal  feudal  scheme.  Du- 
ring the  conflicts  between  the  emperors  and  their  subjects, 
more  particularly  during  the  existence  of  the  factions  of  the 
Guelfs  and  Ghibellines,  the  adherents  of  the  popes  and  the 
emperors  respectively,  the  chief  nobility,  the  dignified  ec- 
clesiastics, and  the  free  cities  usurped  on  the  prerogatives 
of  the  emperors,  and  both  claimed  and  exercised  the 
rights  of  full  sovereignty  within  their  respective  domains. 
All  that  has  been  said  of  the  privileges  of  the  French 
barons,  and  the  disorder  and  disunion  arising  out  of  them, 
applies  with  equal  force  to  the  members  of  the  Germanic 
Confederacy;  so  that  from  the  accession  of  Rodolph  of 
Hapsburgh,  in  the  year  1273,  to  the  reign  of  Maximilian, 
the  predecessor  of  Charles  V.  in  151S,  the  Empire  was 
the  scene  of  every  disorder.  The  very  constitution  of  the 
diets  was  productive  of  anarchy.  These  originally  were 
exactly  the  same  with  the  assemblies  of  March  and  May 
in  France:  like  them  they  met  twice  a  year;  and  at  them 
every  freeman  had   a  right  to  be  present.      But  when  the 


Lect.  X.]  °F    THE    FEUDAL    LAW.  543 

princes,  the  dignified  ecclesiastics,  and  the  barons  acquired 
independent  jurisdiction,  the  right  of  suffrage  was  annexed 
to  the  territory  or  dignity;  and  if  any  member  of  the 
Empire  made  acquisition  of  a  new  territory  in  it,  he  was 
entitled  to  another  suffrage.  This  league  of  independent 
states,  for  so  it  may  be  called,  was  productive  of  obvious 
disadvantages.  The  powers  of  the  Diet  extended  to  all 
common  concerns  of  the  German  confederacy. 

The  Imperial  Chamber  was  instituted  by  Maximilian  I. 
to  establish  the  authority  of  government,  and  to  put  an 
end  to  private  wars  in  Germany.  The  diets  were  found  in- 
adequate, from  their  size  and  their  unfrequent  assembling, 
to  decide  the  perpetual  disputes  of  the  confederates.  To 
supply  this  defect,  this  tribunal,  consisting  originally  of  a 
president  appointed  by  the  emperor,  and  of  sixteen  judges, 
and  supported  by  a  contribution  from  the  states  of  the  Em- 
pire, was  established  to  take  cognizance  of  all  questions  of 
civil  right  between  these  states,  and  to  judge  in  all  cri- 
minal causes  connected  with  the  preservation  of  the  pub- 
lic peace.  It  passed  judgment  in  the  last  resort,  and  with- 
out appeal. 

All  causes  relating  to  points  of  feudal  right  or  jurisdic- 
tion, and  such  as  respected  the  territories  holden  of  the 
Empire  in  Italy,  belonged  to  the  jurisdiction  of  the  Aulic 
Council,  a  tribunal  formed  on  the  model  of  the  ancient 
Court  of  the  Palace.  All  its  judges  were  appointed  by 
the  emperor,  and  it  has  always  therefore  been  the  policy 
of  the  court  of  Vienna  to  extend  the  jurisdiction  of  this 
council,  and  to  circumscribe  that  of  the  Imperial  Chamber. 
And  these  two  institutions,  though  far  from  perfect,  reme- 
died some  of  the  inconveniences  and  oppressions  of  the 
feudal  anarchy,  and  territorial  jurisdiction,  and  gave  some- 
thing like  authority  to  the  emperors  beyond  the  boundaries 
of  their  hereditarv  dominions. 


544  OF    THE     FEUDAL    LAW.  [Lect.  X. 

Similar  disorganization  prevailed  also  in  Spain,  and  like 
remedies  were  provided.  But  all  these  kingdoms  failed  to 
preserve  from  their  assemblies  of  the  people,  a  body  like 
the  English  Parliament,  constitutionally  and  practically  the 
organ  of  the  wishes  of  the  people,  and  the  depository  of 
regular  laws  and  of  liberty. 

It  is  hardly  necessary  to  remark  that,  as  all  the  feudal 
kingdoms  bore  a  strong  resemblance  to  each  other,  so  the 
model  of  their  general  assemblies  of  the  people  was  origi- 
nally the  same;  and  the  diets  of  Germany,  the  states-gene- 
ral of  France,  the  cortes  of  Spain,  and  the  parliament  of 
England,  all  sprang  from  this  original  foundation.  But  the 
fate  of  these  several  countries  was  different,  according  to 
the  character  finally  assumed  by  these  latter  assemblies. 
We  have  shown  how  the  diet  of  Germany  became  at  last 
rather  a  congress  of  deputies  of  states,  independent  and 
dissimilar  in  their  political  organization,  than  a  representa- 
tive body  of  one  free  state;  and  how  the  parliament  of  Pa- 
ris, at  first  a  select  council  of  the  king,  usurped  the  legis- 
lative prerogative  which  appertained  to  the  Champs  de 
Mars.  The  cortes  of  Spain  retained  for  a  longer  time  the 
spirit  of  the  original  legislative  structure,  though  they 
yielded  at  last  to  the  influence  of  those  powerful  causes 
which,  throughout  the  Continent,  elevated  the  royal  prero- 
gative above  both  the  aristocracy  and  the  people. 

It  is  in  England  alone,  of  all  the  old  countries,  that  we 
find  an  assemblage  of  the  freemen  of  the  state,  retaining  all 
its  primary  form  and  spirit.  It  was,  indeed,  subjected  to 
many  mutations  of  influence  and  structure;  but  it  has,  ne- 
vertheless, preserved  to  that  fortunate  country  a  sense  of 
freedom,  and  a  body  of  privileges,  now  known  to  no  coun- 
try in  which  feudalism  prevailed. 

Such,  then,  is  a  brief  outline  of  the  feudal  scheme  of 
government  on  the  Continent;  of  its  defects,  its  decline, 
and  the  causes  which  built  up  the  modern  monarchies  on 


Led.  X-3  OF    THE     FEUDAL     LAW.  545 

its  ruins.  To  have  treated  all  these  interesting  topics  with 
fulness,  would  have  been  not  only  superfluous,  but  foreign 
to  the  plan  of  these  'Outlines.'  The  subject,  however,  was 
too  important  to  be  passed  over  slightly,  and  what  I  have 
said  may  stimulate  you  to  further  inquiries. 

Part  the  Second. 

„.  ..    ,    .  ,  Division  VIII.      Having  described  the 

Of  the  feudal  sys-  ° 

tem  in  England,  and  general  nature  of  the  feudal  system,  as  it 

its  influence  on  the  existed  on  the  Continent,  I  proceed  to 
jurisprudence  of  that  _    * 

country  and  of  the  the   consideration   of  it  as  it   was  mani- 

American  States.  fested  in  England,  from  the  earliest  times 
to  its  virtual  abolition  in  the  reign  of  the  second  Charles. 
And  I  shall  close  the  lecture  with  a  brief  inquiry  as  to  the 
influence  of  this  long  prevailing  system  on  the  jurispru- 
dence of  England  and  of  this  country,  and  the  necessity  of 
making  the  laws  and  institutions  of  the  feudal  ages  a  subject 
of  diligent  examination  by  legal  students. 

The    true   sera   of  the   introduction  of 
(1.)  Of  the  sera  of 

the  introduction  of  feuds  into  England,  has  been  a  point  on 
feuds  into  England,  ^^ich  there  has  been  much  diversity  of 
opinion  among  antiquarians;  Lord  Coke,  Selden,  Nathaniel 
Bacon,  Gilbert  Steuart,  Mr  Turner,  &c.  contending  for 
their  existence  in  that  country  before  the  Conquest;  and 
Madox,  Craig,  Spelman,  Hale,  Somner,  Sullivan,  Hume, 
Houard  and  Eawdwen  ranging  themselves  on  the  opposite 
side;  whilst  Wright,  Blackstone,  Dalrymple,  Watkins, 
and  Lord  Kaimes  take  something  of  a  middle  ground. 

When  it  is  recollected  that  the  feudal  system  was  not 
brought  by  the  invaders  of  the  Roman  empire  into  their 
conquests,  but  that  it  resulted  from  their  circumstances 
after  their  establishment  there,  and  after  a  long  series  of 
years,  it  is  not  surprising  that  these  invaders,  although  of 
common  origin,  should  be  found  living  under  different 
systems  of  policy.  The  Saxon  invaders  of  England 
69 


546  OF    THE    FEUDAL    LAW.  [Lect.  X. 

are  said  to  have  been  a  cruel  and  extirpating  race.  They 
put  the  ancient  inhabitants  of  Britain  to  the  sword,  or 
drove  them  into  France  and  Wales,  instead  of  settling 
themselves  among  the  conquered,  as  was  frequently  the 
case  on  the  Continent.  The  nature,  also,  of  their  incur- 
sions, made  in  separate  bodies,  and  in  quest  of  distinct  set- 
tlements, would  be  apt  to  cause  a  greater  slaughter  of  the 
natives.  Hence  there  was  no  want  of  vacant  lands,  and  no 
severe  duties,  consequently,  could  be  required  in  return  for 
the  grant  of  them.  Moreover,  the  adventurers  who  came 
over  being  independent  plunderers,  their  attendants  would 
be  rather  their  associates  than  their  feudatories;  and  this, 
among  other  causes,  produced  the  numerous  independent 
kingdoms  of  that  island.  Every  point  in  these  character- 
istics of  the  Saxons  is,  we  think,  at  war  with  that  regular 
dependency  which  marked  the  feudal  system,  and  would 
prevent  its  prevailing  at  that  time  in  Britain,  especially  as  it 
was  protected  by  the  sea  from  foreign  enemies. 

Such  being  the  probable  reasons,  among  others,  of   the 
Saxons  differing  in  institutions  from    their   brother  barba- 
rians of  the  Continent,  let  us  examine  whether  the  fact  of 
this  difference  be  established.     And   it   may  be  remarked, 
by  the  way,  that  the  general  resemblance  of  the  barbarian 
forms  has  misled  authors,  we  apprehend,  into  a  neglect  of 
their   minute  differences.      Those  writers  who  could   trace 
the  origin  of  feuds  in  the  military  donations  of  land  among 
the  Romans,  would   be   yet  more  likely  to  be  imposed  on 
by  the  greater  similarity  of  the  Saxon  manners  and  institu- 
tions to   those  of  feudal   countries.      Besides,  the  fact  of 
some  few  of   the  Saxon   lands   being   granted  as  military 
benefices  for  life,  (if  they  ever  were  so  granted)  has  led  to 
a  supposition  that  these  prevailed  more  generally,  and  pro- 
duced larger  feudal  consequences,  than,  in  my  opinion,  we 
are  justified  in  supposing  from  the  Saxon  history.      In  fact, 
many  of  the  very  reasons  usually  urged  to  prove  that  lands 


Lect.  X.j  OF    THE     FEUDAL     LAW.  547 

in  the  Saxon  times  were  held  as  feudal  inheritances,  prove 
rather  the  contrary.  Thus,  for  example,  the  Saxon  lands 
were  certainly  hereditary;  but  those  of  the  Greeks,  the 
Romans,  nay  even  the  allodial  lands  in  the  conquests  of 
the  barbarians  themselves,  were  the  same.  Indeed,  the 
military  benefices  on  the  Continent  were  not,  as  we  have 
seen,  hereditary  at  first;  so  that  this  argument  is  rather 
adverse  to  the  point  which  it  is  brought  to  prove,  since, 
though  a  proper  feud  is  a  hereditament,  yet  we  know  that 
the  very  genius  of  the  early  feudalism  excluded  hereditari- 
ness.  The  Saxon  lands  were  alienable  at  the  will  of  the 
owner;  they  were  not  forfeitable  for  felony;  and  they  were 
divisible  among  all  the  sons, — which  fiefs  were,  only  in  their 
infancy,  if  they  ever  were.  As  to  the  military  service  to 
which  they  were  subject,  the  allodial  lands  in  other  coun- 
tries were  also  subject  to  it;  and  indeed  every  nation  must 
necessarily  exact  such  service  from  the  members  of  the 
state.  It  differed,  however,  in  several  essential  particulars 
from  the  feudal  military  service.  The  Saxons  served  as 
foot  soldiers,  and  not  on  horseback  and  in  complete  ar- 
mour, as  the  feudal  tenants  did,  who  also  went  to  war  only 
on  summons.  The  Saxons  had  regular  musters  for  the  pre- 
servation of  discipline,  and  their  military  duties  were  ex- 
acted and  performed  in  a  manner  similar  to  those  of  our 
militia;  but  the  feudal  tenants  were  obliged  to  serve  forty 
days,  and  this,  too,  at  their  own  expense,  and  wherever  the 
king  pleased,  in  a  just  or  defensive  war;  nay,  in  an  unjust 
and  offensive  one,  by  the  rule  of  William  the  Conqueror. 
Among  the  Saxons,  the  obligation  to  military  service  ap- 
pertained to  the  land  in  proportion  to  the  quantity  held, 
every  hide  of  land  (consisting,  of  about  115  acres)  finding 
one  man,  and  there  being  no  necessity  for  personal  attend- 
ance, nor  any  pecuniary  commutation  for  it.  In  his  own 
county  the  soldier  was  supported  by  the  hide  of  land;  in 
another  county  he  was  sustained  either  by  his  king  or  by 


548  OF    THE     FEUDAL    LAW.  [Lect.  X. 

that  county.  These  are  great  and  characteristic  differences, 
and  indeed   have  scarcely  a  feature  of  feudalism  in  them. 

Again.  The  arguments  in  favour  of  the  existence  of  feu- 
dalism in  England  prior  to  the  Conquest,  derived  from  the 
existence  of  Heriots,  and  the  supposed  oath  of  fealty  among 
the  Saxons,  are  open  to  equal  objection.  Heriots  cannot 
be  justly  likened  to  Reliefs;  for"  these  last  were  demandable 
of  the  heir  only,  who  could  not  even  enter  on  his  lands  un- 
til the  relief  had  been  paid.  The  heriot,  on  the  other 
hand,  was  paid  out  of  the  tenant's  personal  estate,  and  by 
the  executor  or  administrator.  The  oath  of  fealty,  also, 
was  made  by  the  feudal  tenant  to  his  lord;  and  even  when 
made  to  the  king,  it  was  in  respect  of  the  tenure  of  land, 
and  as  his  lord;  whereas  the  oath  taken  among  the  Saxons 
was  to  the  king  only,  and  as  king,  not  as  landlord;  and  was 
neither  more  nor  less  than  an  oath  of  allegiance,  being  ta- 
ken by  every  male  above  the  age  of  twelve,  whether  land- 
holder or  not. 

It  seems,  however,  to  be  the  opinion  of  many  respecta- 
ble writers  on  this  subject,  that  some  lands  in  England 
were  held  before  the  Conquest  as  military  benefices  or 
feuds;  but  the  better  opinion  is,  that  they  were  benefices 
for  life  only,  unattended  by  the  feudal  incidents  of  wardship, 
marriage,  relief  &c.  and  that  no  inference,  consequently, 
in  favour  of  the  existence  of  feudalism  in  England  at  that 
time,  can  fairly  be  drawn  from  this  fact. 

Dalrymple,  a  very  judicious  author,  is  of  opinion  that 
lands  among  the  Saxons  were  both  feudal  and  allodial,  as 
was  the  case  among  the  continental  nations;  and  thinks  that 
this  is  proved  by  their  well  known  distinction  between 
Thaneland  or  Bockland,  and  Reveland  or  Folkland;  the 
first  of  which  he  conceives  to  have  been  feudal,  and  to  have 
been  granted  to,  and  under  the  jurisdiction  of,  the  Thanes 
or  great  lords;  and  the  second  to  have  been  allodial, and 
presided  over  by  the   King's  officer,  the   Reve  or  Sheriff. 


Lect.  X.]  OF    THE     FEUDAL    LAW.  54!? 

This  distinction,  he  confesses,  is  differently  explained  by- 
other  historians,  lawyers  and  antiquaries.  It  is  highly  pro- 
bable that  large  grants  of  land  to  the  thanes  were  thought 
to  require  more  authentic  memorials  than  ordinary,  and 
might  thus  be  called  Bocland;  and  it  is  quite  likely  that 
these  lands  being  cultivated  by  villains,  the  lord  exercised 
over  them  an  arbitrary  jurisdiction  different  from  that  ex- 
ercised over  allodial  proprietors.  Nay,  the  very  fact  that 
the  possessors  of  allodial  or  Folkland  were  called  Libert, 
in  opposition  to  the  slaves,  or  tenants  of  the  thanes,  de- 
monstrates the  position  just  stated;  for  in  feudal  countries 
the  liberi  were  both  feudal  and  allodial  proprietors,  and 
indeed  this  was  a  term  which  implied  a  warrior,  or  one 
bound  by  his  tenure  (if  bound  at  all)  to  military,  and  not 
to  base  services.  The  same  term,  therefore,  among  the 
Saxons  expressed  probably  the  freemen,  whether  the  great 
thanes  or  smaller  landholders,  in  opposition  to  the  villains 
or  slaves  who  cultivated  the  grounds  of  both.  Mr.  Hume, 
however,  gives  a  different  explanation  of  Bockland  and 
Thaneland;  the  first  he  supposes  was  land  held  by  book  or 
charter,  which  was  regarded  as  dominium  plenum,  full 
property,  and  was  hereditary;  the  second  was  held  by  the 
common  folk  or  people,  who  were  removable  at  pleasure, 
and  were  nothing  more  than  tenants  at  will.*  That  the 
Bockland  of  the  Anglo-Saxon  codes  was  in  most  respects 
similar  to  the  Alodis  of  the  continental  nations,  and  that 
the  Folkland  of  the  same  codes  remotely  resembled  the 
lands  held  in  feudal  vassalage,  cannot  be  doubted;  but  this 
goes  but  little  way,  if  any,  to  establish  the  existence  of 
feuds  in  England  in  the  time  of  the  Saxons. 

As  to  the  opinion  of  Gilbert  Steuart,  who,  in  his  'View 
of  Civil  Society  in  Europe,'  has  laboured  to  establish  the 
existence  of  feuds  in-  England  anterior  to  the  Conquest,  I 
cannot  but  remark  that  it  appears  to  me  extremely  ill  sup- 

*  1  Hume's  Eng.  Appen.  195. 


550  OF    THE     FEUDAL    LAW.  [Lect.  X. 

ported,  his  citations  being  few,  and,  for  the  most  part,  very 
inapposite.  The  perusal  of  that  part  of  his  work  which 
aims  to  establish  this  point,  is  sufficient,  we  think,  on  his 
own  showing,  to  prove  to  the  considerate  reader  the  weak- 
ness of  the  theory.  We  refer  the  student  to  the  eleventh 
note  on  his  second  chapter,  for  this  author's  interpretation 
of  the  grant  of  Cumberland  to  Malcolm,  king  of  Scotland, 
by  king  Edmund,  in  which  he  will  see  a  fair  specimen  of 
his  forced  constructions  and  illogical  arguments.  Steuart 
is  a  champion  of  some  celebrity  on  that  side  of  the  ques- 
tion, and  we  regret  that  our  limits  do  not  allow  us  to  quote 
the  passage  alluded  to,  and  to  comment  on  it,  not  only  that 
we  might  urge  it  in  support  of  the  opinion  we  have 
adopted,  but  as  a  sample,  among  many  others,  of  the  pre- 
judice of  writers  when  they  espouse  party  sentiments,  or 
apply  themselves  to  the  support  of  a  favorite  theory.  We 
shall  have  occasion  again  to  advert  to  this  subject  at  the 
close  of  the  present  lecture. 

The  enlightened  commentator  on  the  laws  of  England  is 
disposed  to  compromise  this  difference  of  opinion,  by  ad- 
mitting that  an  imperfect  system  of  feuds  subsisted  among 
the  Saxons  long  prior  to  the  Conquest.*  We  are  inclined, 
however,  to  believe  that  the  faint  traces  of  feudalism  relied 
on  by  these  writers  in  support  of  their  respective  theories, 
are  not  strictly  feudal  characteristics,  but  belong  to  the  po- 
licy of  nearly  every  nation  in  its  primitive  history.  Hence 
the  thaneland,  bocland,  folkland,  &c.  and  the  several  or- 
ders of  men,  the  noble,  the  free,  and  the  slaves,  who  went 
under  the  names  of  the  king's  thanes,  lesser  thanes,  ceorles 
or  husbandmen,  and  villains,  afford  no  evidence  of  feuda- 
lism, the  like  distinctions  existing  among  most  other 
people. 

On  the  whole,  then,  we  may  conclude,  and  with  the 
authority  of  many  eminent  antiquaries,  and  one  illustrious 

*  2  Blackstone's  Commentaries  47. 


Lect.  X.]  OF    THE    FEUDAL    LAW.  551 

historian,  Hume,  in  our  favour,  that  the  feudal  system, 
whatever  slight  resemblances  may  be  found  to  it  in  the  in- 
stitutions of  the  Saxons,  was  unknown  to  them  before  the 
Conquest.  According  to  this  better  opinion,  it  is  to  Wil- 
liam the  Conqueror  that  we  must  look  for  its  introduction.* 
We  shall  now  proceed  to  a  more  particular  examination 
of  this  system,  as  it  afterwards  manifested  itself  in  that 
country. 

The  Norman  conqueror  found  himself  at 
(2.)  Of  the  chang-  n 

es    effected   by  the  the  head  of  a  victorious  army  to  which  the 

Norman  invasion.  dispirited  and  vanquished  Saxons  could 
offer  no  effectual  resistance.  Having  extinguished  the  last 
sparks  of  national  spirit,  he  set  himself  to  modelling  the 
government  to  his  own  views,  without  regard  to  the  rights 
or  complaints  of  the  Saxons.  He  shared  most  of  the  lands 
of  the  kingdom  among  his  Norman  adventurers,  on  the 
plan  of  the  feudal  government  of  France,  and  invested  the 
most  distinguished  of  these  with  enormous  estates  and  re- 
venues. He  gave,  for  instance,  to  his  sister's  son  the 
whole  county  of  Chester;  to  the  Earl  of  Montaigne  nine 

*  A  few  writers  have  sometimes  inadvertently  applied  the  word  te- 
nure to  the  Anglo-Saxon  holdings.  That  there  were  conditional,  and 
occasionally  stipendiary  grants  among  the  Saxons,  is  undeniable;  but  these 
are  very  different  from  the  tenure  of  the  feudists.  We  think  that  Mr.  Tur- 
ner, a  very  able  antiquarian,  has  fallen  into  this  errour  in  his  history  of  the 
Anglo-Saxons.  He  alludes  to  the  habendum  of  their  grants,  as  determin- 
ing the  nature  of  the  tenure;  but  it  is  far  more  probable  that  the  habendum 
was  used  then,  as  it  is  now,  in  order  to  fix  and  define  the  interest  of  the 
grantee,  and  not  with  a  view  of  creating  a  tenure,  properly  so  called. — 
Vide  Turner's  His.  Anglo-Saxons,  201,  222,  225.  The  word  tenure,  in- 
deed, has  a  strictly  technical  and  feudal  meaning,  and  imports,  not  only  a 
holding,  but  a  feudal  relation  thereby  established  between  the  tenant  and 
his  superior  lord.  In  after  times  it  sometimes  assumed  a  more  popular 
signification,  synonymous  with  the  word  title  or  estate.  Those  who  are 
seised  of  allodial  estates  are  often  called  tenants;  so  also  the  king  is  said 
to  be  seised  in  his  demesne  as  of  fee;  but  in  both  these  cases,  nothing 
more  can  be  meant  than  the  title  or  quantity  of  interest  vested  in  the  allo- 
dial tenants  and  king  respectively. 


552  OF    THE     FEUDAL    LAW.  [Lect.  X. 

hundred  and  seventy-three  manors  and  lordships;  and  to 
the  Earl  of  Brittany  and  Richmond  four  hundred  and  forty- 
two  manors.* 

It  has  been  a  subject  of  surprise  that  the  Conqueror  could 
thus  easily  deprive  the  Saxon  proprietors  of  their  lands. 
But  it  is  extremely  probable  that  the  Saxon  government 
was  highly  aristocratical,  the  property  in  few  hands,  and 
the  common  people  tenants  at  pleasure,  and  therefore  care- 
less of  whom  they  held  such  a  precarious  interest  in  the 
soil.  The  forfeiture,  also,  of  many  large  estates  for  trea- 
son, accounts  for  so  much  of  the  landed  property  passing 
so  immediately,  and  with  so  little  tumult,  into  the  royal 
hands.  It  was  easy,  too,  to  model  the  rest  after  the  same 
fashion;  for  although  the  Saxons  were  a  brave  race,  they 
were  extremely  rude  and  ignorant,  intemperate  and  riotous, 
and,  moreover,  were  rather  remarkable  for  their  want  of 
loyalty  and  fidelity.  A  conquered  people  of  this  kind, 
whom  even  the  Normans  regarded  as  barbarians,  could  not 
be  expected  to  make  much  resistance  to  any  innovation,  es- 
pecially when  the  thanes,  who  had  monopolized  most  of 
the  lands,  were  themselves  completely  subdued,  and  at  the 
mercy  of  the  Conqueror.  Hence  was  it  that  William  in 
fact,  by  the  concurring  authority  of  most  historians,  con- 
verted England  per  saltwn  into  a  feudal  kingdom,  so 
much  the  more  rigorously  feudal  as  his  authority  was  na- 
turally great  both  over  the  invaders  and  the  invaded. 
The  whole  kingdom  was  divided  by  him  into  sixty  thou- 
sand two  hundred  and  fifteen  knight's  fees,  held  by  about 
seven  hundred  chief  tenants;  the  ecclesiastical  lands  and 
revenues  being  reduced  under  the  same  feudal  law  as  the 
lay,  and  liable  to  the  same  military  service. 

*  The  curious  student,  who  may  desire  to  know  the  extent  of  the  landed 
monopoly  consequent  on  the  introduction  of  feudalism  by  the  Conqueror, 
may  consult  Bawdwen's  Domesday  Book,  translated,  and  published,  with 
a  glossary,  in  the  year  1S09. 


Lect.  X.]  OF   THE    FEUDAL   LAW.  553 

,„  .  „  .  r  Such  a  system  was  obviously  wholly 

(3.)   Brief    exami-  J  J  j 

nation  into  the  na-  warlike  in    its  character.      Accordingly, 

ture  of  English  feud's.    we   fin(J  the    mi]itary    tenures  to   have  ex_ 

isted  in  their  full  vigour  in  England.  Of  the  incidents  of 
these,  as  they  existed  in  the  feudalism  of  the  Continent,  I 
have  already  spoken,  apd  shall  have  the  less  to  sav  in  re- 
gard to  their  character  in  England.  I  have  also  explained 
the  various  kinds  of  improper  feuds  known  to  the  feudal 
jurisprudence  of  the  Continent.  In  England  they  were 
also  of  ten  kinds,  which  it  will  be  sufficient  briefly  to  men- 
tion, as  they  varied  in  no  very  material  respect  from  those 
already  described.  They  were  as  follows.  1.  Tenure  in 
frankalmoigne.  2.  Tenure  without  the  oath  of  fealty.  3. 
Land  held  under  some  condition  which  might  extend  it  be- 
yond the  tenant's  life,  or  determine  it  before  his  death. 
4.  Lands  held  by  any  other  than  military  services,  or  even 
by  military,  if  certain.  5.  Lands  held  by  civil  and  de- 
fined services,  called  soocage,  a  tenure  destined  to  grow 
into  paramount  importance,  and  to  become  the  tenure  of 
nearly  all  English  lands.  6.  Tenure  by  the  oath  of  fealty 
only.  7.  Grand  serjeantry,  whether  military  or  civil,  the 
services  being  certain.  8.  Petty  serjeantry.  9.  Grants 
to  female  tenants,  as  they  served  by  deputy,  personal  ser- 
vices being  essential  to  the  notion  of  a  proper  feud.  10. 
All  grants  of  incorporeal  things.  The  principle  which 
characterizes  each  of  the  foregoing  as  an  improper  feud, 
distinctly  manifests,  also,  the  strict  idea  of  a  proper  feud, 
to  the  consideration  of  which  we  have  now  briefly  to  advert. 
We  have  seen  that  the  essential  reservation  on  all  proper 
feuds  was  military  service.  But  in  addition  to  this,  the 
king  and  lords  in  England  were  entitled  to  Aids,  which 
originally  were  mere  gratuities  of  the  vassals,  bestowed  on 
some  great  festal  occasion,  or  to  relieve  some  very  press- 
ing necessity  of  the  king  or  lord.  They  differed  in  no  ma- 
terial respect  from  those  which  were  customary  on  the  Con- 
70 


554  OF    THE    FEUDAL    LAW.  [Lect.  X- 

tinent.  In  regard  to  the  doctrine  of  Escheat,  which  has 
also  been  mentioned,  I  have  only  to  observe  that,  besides 
the  actual  failure  of  heirs,  the  feud  was  liable  to  escheat  to 
the  lord  propter  del/cta  /mentis;  and  originally  these 
offences  were  very  numerous.  These  forfeitures,  however, 
being  resisted,  and  very  naturally,  by  persons  who  had 
paid  for  their  land,  a  total  change  in  this  respect  was  gra- 
dually effected,  and  at  length  scarcely  any  injury  done  by 
the  vassal  to  his  lord  induced  an  escheat  of  the  feud;  but 
the  escheat  for  crimes  against  the  publick  remained;  as,  for 
instance,  for  treason  and  fe'onies,  of  which  the  consequence 
was  corruption  of  blood,  the  failure  of  heirs,  and  the  ne- 
cessary escheat  of  the  feud.  In  this  case  the  land,  on  ac- 
count of  the  crime  against  the  publick,  went  to  the  king  for 
a  year  and  a  day,  and  then  fell  to  the  particular  lord  of 
whom  it  had  been  held.  It  is  proper,  however,  to  remark 
that  the  king's  year  and  a  day  in  the  lapsed  feud  was  not  a 
direct  consequence  of  the  subject's  crime,  but  is  supposed 
to  have  thus  originated.  The  vassal's  land  originally  belong- 
ing to  the  lord,  reverted  to  him  or  his  heirs  whenever  the 
vassal  became  obviously  unworthy  to  enjoy  it  longer.  But 
the  personal  estate,  or  moveables,  being  of  his  own  acquisi- 
tion, was  the  only  fund  that  could  be  resorted  to  for  the  dis- 
charge of  the  debt  which  he  was  supposed  to  have  contract- 
ed by  his  crime  to  the  publick.  It  being  necessary,  there- 
fore, that  the  magistrate  should  have  some  time  to  collect 
these  goods,  custom  at  length  gave  to  the  king's  minister  the 
year  and  the  day  above  mentioned,  for  that  purpose.  In 
lawless  and  oppressive  times,  however,  we  find  that  this 
magistrate  often  committed,  for  the  benefit  of  majesty  or 
himself,  the  most  ruinous  waste  on  the  escheated  lands;  so 
that  ihe  lords  found  it  their  interest  to  commute  this  pri- 
vilege by  allowing  to  the  king  uniformly  a  whole  year's 
rent  in  anticipation.  The  same  rule  of  escheat  obtained  in 
cases  of  treason,  after  the  establishment  of  rear-vassallage, 


Lect.  X.]  OF    THE    FEUDAL    LAW.  555 

until  the  famous  statute  of  Treasons,  25  Edward  III.  chap.  2, 
which  made  lands  forfeitable  to  the  king  on  the  tenant's 
treason,  notwithstanding  they  were  holden  of  lords,  and 
not  of  the  king  in  capite.  Thus,  while  escheat  is  by  the 
common  law,  forfeiture  is  said  to  be  by  statute. 

The  nature  of  Reliefs,  another  feudal  incident,  has  also 
been  explained  in  the  first  part  of  this  lecture.  In  Eng- 
land, a  year  and  a  day  were  allowed  the  heir  to  make  his 
fealty,  and  to  pay  his  relief;  within  which  time  if  he  failed 
to  do  so,  he  forfeited  his  right  of  succession,  and  the  lord 
was  at  liberty  to  dispose  of  it  to  a  stranger:  this  was  called 
the  right  of  Non-entry.  The  reliefs,  being  at  first  arbitrary, 
occasioned  many  struggles  in  England.  It  appears  that 
the  discontents  which  arose  on  the  Continent  from  vexa- 
tious and  uncertain  reliefs,  induced  William  the  Conqueror 
to  fix  the  rate  of  them  according  to  the  ranks  of  persons, 
and  the  value  of  their  estates:  but  William  Rufus  having 
exacted  arbitrary  reliefs,  the  grievance  was  redressed  by 
the  charter  of  Henry  I.  Yet  we  find  that  though  in  the 
time  of  his  grandson,  Henry  II.  this  certainty  continued 
as  to  the  relief  of  a  knight's  fee,  it  did  not  obtain  as  to  that 
of  a  noble  fee,  a  difference  ascribable  to  the  precarious  state 
of  the  nobles,  many  of  whom  had  been  attached  to  the 
cause  of  Stephen.  Under  John  these  exactions  became 
excessive,  and  produced  the  first  article  of  temporal  con- 
cern in  Magna  Charta.  This  fixed  the  relief  at  the  fourth 
part  of  the  annual  value  of  the  inheritance.  The  lords, 
when  they  began  to  grant  inheritances  to  their  soccage  te- 
nants, exacted  from  every  new  possessor  a  year's  value,  or 
double  the  rent  of  the  first  year. 

The  Fine  for  alienation  was  also  generally  a  year's  rent; 
but  to  avoid  this  fine,  the  vassals  adopted  the  plan  of  sub- 
infeudation, making  thereby  the  conveyee  of  the  feud  to 
hold  of  the  conveyor,  instead  of  the  original  lord,  whereby 
that  lord  lost  in  a  great  degree  the  incidents  and  fruits  of 


556  OF    THE    FEUDAL    LAV,  .  [Lect.  X. 

the  tenure.  This  practice  of  sub-infeudation,  as  distin- 
guished from  alienation,  prevailed  so  extensively  as  nearly 
to  threaten  the  existence  of  feudalism  in  England.  If,  for 
example,  A  were  lord,  and  B  his  tenant,  B  could  not  ali- 
enate any  part  of  the  feud,  except  with  the  lord's  consent, 
and  on  paying  a  fine  for  alienation;  and  in  this  case  C,  the 
purchaser  or  alienee,  would  hold  the  feud  of  the  lord  A, 
and  not  of  B.  But  in  the  case  of  a  sub-infeudation  by  B, 
he  merely  carved  out  a  new  feud  to  C,  who  would  hold  the 
feud  of  B  by  such  services  as  should  be  reserved,  whilst  B 
continued  as  before  to  hold  of  his  lord  A.  Here,  then,  it 
was  manifest  that  A  could  demand  no  fine  for  alienation, 
for  a  legal  or  technical  alienation  was  not  made;  and  B 
though  bound  to  services  as  usual,  might  be  less  able  to 
render  them.  Thus  was  taken  away,  not  only  the  ne- 
cessity of  A's  consent  to  the  transfer  of  the  land,  and  his  fine 
for  alienation,  but  also  the  other  fruits  of  tenure;  and  the 
tenant  gained  his  object  nearly  as  effectually  by  sub-infeu- 
dation, as  he  could  have  done  by  unrestricted  aliena- 
tion. To  correct  this  practice,  not  however  with  the 
view  of  preserving  the  fines  for  alienation,  the  celebrated 
statute  of  Quia  Emptores  Terrurum,  18  Edward  I.  was 
parsed.  By  that  statute  the  vassal  was  allowed  the  full  li- 
berty of  alienating  the  feud;  but  the  alienee  was  compelled 
to  hold  ihe  lands  of  the  alienor's  lord,  and  not  of  his  own 
grantor.  Sub-infeudation  being  thus  wholly  abolished, 
and  alienations  allowed,  the  fine  for  alienation  of  course 
ceased  from  that  time;  except  that  the  immediate  tenants 
of  the  crown  not  being  embraced  by  the  statute  of  Quia 
Emptores,  this  fine  continued  to  be  demandable  from 
them  until,  by  the  abolition  of  knight's  service  in  the 
reign  of  Charles  II.  all  tenants  were  placed  on  the  same 
footing. 

What  has  been  heretofore  stated  in  regard  to  the  feudal 
incidents  of  Wardship  and  Marriage  on  the  Continent,  will 


Lect.  X.]  °F    THE    FEUDAL    LAW.  557 

be  found  to  apply  very  generally  to  them  as  the)r  appeared 
in  England.  Although  wardship  of  lands  held  by  military 
tenure  be  intelligible  enough  on  the  principle  of  that  te- 
nure, it  is  not  quite  so  easy  to  explain  the  lord's  right  of 
wardship  of  the  person.  In  soccage  tenure,  the  wardship 
of  the  latter,  as  well  as  that  of  the  land,  belonged  to  the 
next  of  kin  who  could  not  b}^  possibility  inherit  the  estate; 
a  regulation  much  commended  by  the  admirers  of  the  com- 
mon law,  as  contributing  to  the  preservation  of  the  heir's 
life.  The  committal  of  the  heir  of  a  military  tenure  to 
the  custody  of  the  lord  of  whom  he  held  the  lands,  arose 
in  part,  if  not  wholly,  from  the  genius  of  the  age,  which 
indicated  as  the  proper  instructor  of  the  heir  in  warlike 
exercises,  him  who  was  afterwards  to  receive  the  benefit  of 
his  services;  anit  partly,  also,  from  the  justice  of  burden- 
ing with  the  support  and  sustenance  of  the  heir,  him  who 
had  in  his  hands  the  whole  of  the  heir's  lands.  But 
vvhencesoever  this  may  have  arisen,  the  lord  had  the  cus- 
tody both  of  lands  and  person,  unless  the  minor's  father 
were  living,  who  was  guardian  by  nature,  and  was  there- 
fore entitled  to  the  custody  of  his  person.  The  age  of 
twenty-one  years  was  the  period  of  minority  in  males,  and 
fourteen  in  females;  the  man  being  deemed  capable  of 
bearing  arms,  and  the  woman  of  marriage  with  some  one 
capable  of  the  feudal  duties,  at  those  respective  ages. 

Thus  much  of  the  feudal  incidents  of  military  tenures  in 
England,  which  were  nearly  the  same  as  those  on  the  Con- 
tinent, already  spoken  of.  We  may  advert  however,  for 
a  moment,  to  the  subject  of  Homage  and  Fealty.  The  for- 
mer was  done  for  an  estate  of  inheritance  only,  and  the 
latter  for  an  estate  for  life.  Homage  did  not  require  an 
oath,  as  fealty  did,  which  was  made  with  great  solemnity 
on  the  book.  In  England,  therefore,  homage  and  fealty 
were  always  kept  distinct,  the  homage  being  first  done  for 
the  more  durable  estate,  and  afterwards  the  fealty.     But 


55S  OF    THE    FEUDAL    LAW.  [Lect.  X. 

on  the  Continent,  in  some  countries  at  least,  they  were 
blended  by  the  homage  being  done  upon  oath,  and  includ- 
ing all  the  obligations  of  fealty.  Another  difference  was. 
that  in  England  a  tenant,  having  performed  homage  to  the 
ancestor,  did  not  repeat  it  to  the  lord's  heir,  as  was  always 
done  in  France.  In  England,  also,  the  lands  for  which 
either  homage  or  fealty  was  done,  were  always  specially 
enumerated  for  the  benefit  of  the  lord  and  tenant,  as  also 
for  the  information  of  the  pares  curiae,  which  was  not  the 
case  on  the  Continent. 

(4.)  Of  the  Cus-  It  has  been  stated  in  a  preceding 
torn  of  Gavelkind.  section,  that  the  Conqueror  divided  the 
kingdom  into  60,215  knight's  fees,  all  of  which  were  held 
by  a  feudal  military  tenure.  But  there  existed  at  the  time 
of  the  Conquest,  another  species  of  holding,  called  Gavel- 
kind, which  continues  to  subsist  in  the  county  of  Kent,  and 
is  a  solitary  relic  of  the  Saxon  estates.  Lands  thus  held 
were  not  forfeitable  for  felony,  whence  the  proverb  of 
that  country,  'the  father  to  the  bough,  yet  the  son  to 
the  plough:'  and  on  the  death  of  the  ancestor,' the  lands 
descended  equally  to  all  the  sons;  or  if  a  brother  died 
without  issue,  his  lands  went  equally  to  his  brethren.  It 
has  been  said  that,  prior  to  the  Conquest,  all  the  lands  in 
England  were  of  the  nature  of  gavelkind.  This  specific 
holding  was  preserved  only  on  condition  of  making  the 
eldest  son  the  sole  heir;  and  this  was  done  throughout 
England,  except  in  Kent,  where,  according  to  an  old 
English  author,  the  Kentishmen  surrounded  the  Conqueror 
with  a  moving  wood  of  boughs,  and  successfully  urged 
him   to   confirm  them  in  their  ancient  customs. 

So  late  as  the  reign  of  Henry  VI.  all  the  lands  in  Kent 
were  held  by  gavelkind,  except  those  in  the  possession  of 
a  few  wealthy  individuals.  By  the  statute  31  Henry 
VIII.  on  the  petition  of  many  Kentish  gentlemen,  most  of 
the  lands  of   that  county  were  disgavelled,  and  now  de- 


Lect.  X.]  OF    THE    FEUDAL   LAW.  559 

scend  to  the  eldest  son,  according  to  the  course  of  the  com- 
mon law. 

The  privileges  of  the  custom  hy  gavelkind  were  very 
great.  1.  The  tenant  was  capable  of  alienating  by  feoff- 
ment at  the  age  of  fifteen.  2.  The  estate  did  not  escheat 
for  any  crime  committed  by  the  tenant,  except  treason.  3. 
The  estate  descended  to  all  the  sons  equally.  4.  If  a  father 
had  two  sons,  one  of  whom  died  during  the  life  of  the  fa- 
ther, leaving  a  daughter,  that  daughter  inherited  jure  re- 
jtresentationis  the  part  which  would  have  descended  to 
her  father;  for  though  daughters  were  generally  excluded, 
yet  they  could  inherit  by  representation.  5.  Gavelkind 
lands  were  often  devisable.  6.  The  wife  had  a  moiety 
of  her  husband's  lands  as  her  dower,  but  during  widow- 
hood only,  whereas  the  common  law  gives  one-third  for 
her  life.  7.  The  husband  had  curtesy  in  one  half  of  his 
wife's  lands,  though  he  never  had  issue  by  her;  but  he  for- 
feited the  estate  if  he  married.  8.  If  the  husband  had  is- 
sue by  his  wife,  he  then  took  all  the  lands  by  curtesy,  and 
retained  them  during  his  life  though  he  should  marry.  9. 
All  lands  in  Kent  are  presumed  in  law  to  be  gavelkind,  and 
in  any  judicial  pleading,  they  need  not  be  averred  so  to  be; 
for  the  disgavelled  lands,  though  at  this  time  very  general, 
are  still  regarded  but  as  exceptions  to  the  custom,  which  is 
the  law  of  the  land  of  that  county.  10.  The  special  cus- 
tom of  devising  lands  in  Kent,  is  a  matter  which  the  courts 
ex  officio  do  not  notice:  it  must  be  pleaded,  as  the  custom 
was  not  a  general  one  appertaining  to  gavelkind  lands. 

It  has  been  supposed  by  some  that  this  holding  is  merely 
a  modification  of  the  soccage  tenure  by  county  customs: 
but  others  think  that  the  high  privileges  we  have  enume- 
rated did  not  belong  originally  to  mere  sockmen  and  pea- 
sants, and  that  gavelkind  is  more  likely  to  have  been  the 
progenitor  than  the  offspring  of  the  soccage  tenure.  There 
arose  after  the  Conquest  some  other  tenures,  whose  origin 


560  OF    THE    FEUDAL    LAW.  [Lect.  X. 

will  be  best  explained  by  some  account  of  the  different 
ranks  of  subjects  in  those  times. 

At  that  period  the  people  of  England 

(5.)  Of  the  differ-  ,.    .,     ,    .    .      ,,  .      ,        „        , 

K    J  ,     „    ,  .         were  divided  into  three  great  classes;   1. 
ent  ranks  of  subjects.  CT 

Various  other  tenures  the  Nobility;  2.  the  Gentry,  or  lesser 
introduced  after  the  nobility,  likewise  called  Armigeri,  from 
Conquest.  thejr  fignting  on  horseback  in   complete 

armour;  and  3.  the  Commons.  The  Commons,  again,  con- 
sisted 1.  of  Citizens  and  Burgesses,  whether  merchants  or 
artificers;  2.  of  Soccage  tenants;  and  3.  of  Villains;  the 
two  last  of  whom  were  the  cultivators  of  the  soil.  The 
number  of  soccage  tenants  was  so  few,  or  perhaps  their 
privileges  so  inconsiderable  and  uncertain,  that  they  are 
scarcely  distinguishable  from  the  villains,  although  doubt- 
less many  of  the  inferior  Saxon  landholders  must  have  ar- 
rived at  this  stage  of  their  progress  to  freedom  and  proper- 
ty, anterior  to  the  Norman  conquest.  From  the  villains, 
however,  the  soccage  tenants  principally  arose,  as  also  the 
tenants  in  Ancient  Demesne,  and  Copyhold  tenants,  of  af- 
ter times,  whose  privileges  and  consideration  grew  with 
the  progress  of  trade  and  agriculture,  and  who  now  form 
the  great  body  of  the  English  commons. 

The  word  soccage  is  derived  by  some  from  soca,  a 
plough.  Somner  takes  it  from  the  Saxon  word  soc,  liberty 
or  privilege,  denoting  thereby  a  free  or  privileged  tenure. 
This  tenure  is  defined  by  Littleton  to  be  where  a  tenant 
holds  by  any  certain  service,  in  lieu  of  all  other  services, 
so  that  the  service  be  not  military,  or  knight's  service.  It 
is  probable  that  it  takes  its  name  from  soca,  as  before  stated, 
and  that  the  original  reservation  was  the  ploughing  of  the 
lord's  lands,  more  especially  as  these  tenants,  taken  from 
the  inferior  ranks,  and  even  from  the  villains,  would 
scarcely  bear  the  designation  of  soc,  free  or  privileged, 
when  all  the  nobility  and  gentry  of  the  nation  held  by  the 
honourable  tenure  of  knight's  service,  which,  in  contradis- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  561 

• 
tinction  to  that  of   Soccage,  could  not  be  considered  less 

privileged  and  free.  I  am  not  disposed,  therefore,  to  adopt 
the  notion  of  some,  that  soccage  tenure  had  a  more  noble 
origin  than  what  has  been  generally  given  to  it,  and  that 
gavelkind  is  merely  a  modification  of  this  more  privileged 
holding. 

Of  these  soccage  tenants,  the  Burghers,  or  inhabitants  of 
the  towns,  were  perhaps  the  earliest  in  obtaining  defined 
privileges,  and  some  security  of  estates.  Being  generally 
merchants  and  artificers,  they  collected,  from  various  mo- 
tives, into  small  communities,  and  their  usefulness  natu- 
rally procured  them  some  small  immunities.  On  the  Con- 
tinent, more  particularly  in  France,  the  kings,  indeed, 
found  their  account  in  fostering  the  communities  or  bo- 
roughs in  opposition  to  the  slavish  dominion  of  the  lords 
over  their  vassals;  and  a  similar  policy  might,  when  these 
boroughs  obtained  some  consequence  in  England,  have  led 
to  similar  effects.  We  know  that  enfranchisements  were 
granted  to  the  burghers;  charters  and  privileges  conferred 
on  them;  their  taxes  and  lands  given  to  them  in  fee-farm; 
and  a  new  free  tenure  finally  brought  into  the  law,  known 
as  Tenure  in  Burgage. 

But  the  great  body  of  the  inferior  classes  were  the  Vil- 
lains. This  order  of  men  seems,  among  all  the  northern 
nations,  to  have  been  formed  out  of  the  captives  taken  in 
war.  The  depredations  of  the  Danes,  and  the  wars  of  the 
Heptarchy,  made  them  very  numerous;  and  they  were  in 
a  state  of  servitude  to  which  were  incident  the  most  igno- 
ble, laborious  and  servile  offices.  They  were  of  two  kinds; 
villains  in  gross,  and  villains  regardant;  the  first  belong- 
ing to  the  person  of  the  lord,  the  last  annexed  to  the  land, 
and  transferable  with  it.  It  seems  to  have  been  usual  to 
divide  a  manor  into  four  parts;  one  for  the  military  ten- 
ants of  the  lord;  another  for  the  soccage  tenants  who 
ploughed  his  demesne,  or  rendered  to  him  corn,  cattle  &c. 
71 


562  OF    THE    FEUDAL    LAW.  [Lect.   X. 

a  third  for  the  support  of  the  villains  who  were  employed 
in  felling  timber,  carrying  manure,  making  inclosures,  and 
such  like  offices;  and  a  fourth  was  permitted  to  lie  fallow 
or  waste,  for  commoning  the  cattle  of  all  these.  It  may 
be  seen  from  this  distribution,  that  there  being,  in  most 
manors,  land  set  apart  for  the  use  of  the  villains,  called 
Villain-land,  it  might  retain  its  name,  and  be  liable  to  the 
same  services,  even  after  it  came  into  the  hands  of  freemen. 
But  as  in  this  case  the  services  would  at  least  be  reduced 
to  certainty,  the  tenure,  though  called  villenage  from  the  low 
nature  of  the  duties,  was  properly  soccage,  certainty  of  ser- 
vices being  the  distinguishing  feature  of  that  tenure.  And, 
in  time,  the  base  duties  themselves  being  commuted  for 
money  rents,  these  tenures  became  the  most  advantageous 
of  any,  as  they  were  relieved  from  their  servile  character, 
on  the  one  hand,  and  made  determinate  in  their  extent,  on 
the  other. 

The  nature  of  the  tenure  in  villenage  becoming  thus 
gradually  changed  for  the  better,  and  the  unhappy  condi- 
tion of  the  villains  themselves  much  amended,  the  law  fa- 
voured their  enfranchisement  in  various  ways;  and  we 
find  that  the  courts  not  only  gave  the  most  favourable  in- 
terpretation to  express  emancipations,  but,  in  a  manner 
similar  to  that  practised  in  the  Roman  law,  sanctioned  va- 
rious implied  modes  of  emancipation.  Thus,  for  example, 
if  the  lord  executed  to  his  villain  an  obligation  or  other 
contract;  or  granted  an  annuity  to  him;  or  executed  to 
him  a  lease  for  life  or  years;  or  enfeoffed  him;  or  sued  him 
in  an  action,  and  recovered,  or  was  nonsuited  after  ap- 
pearance; or  if  the  lord  married  his  nief,  or  female  villain; 
in  all  these  cases  the  villain  was  manumitted  by  implica- 
tion of  law.  By  the  Roman  law,  if  a  slave  who  had  been 
enfranchised  became  markedly  ungrateful  to  his  former 
master,  he  could  be  reclaimed.  This,  however,  was  never 
the  case  in  England,  the  maxim  there  being,  se?nei  manu- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  563 

missum,  semper  liberum.  The  implied  manumissions 
were  more  numerous  than  those  we  have  stated;  but 
these  sufficiently  illustrate  the  principle.  It  was  also 
usual  for  the  lord  to  emancipate  villains  expressly,  in  order 
to  convert  them  into  soldiers  and  adherents. 

From  this  class  also  arose  the  Copyhold  tenants;  for  it 
frequently  happened  that  a  succession  of  humane  lords 
forbearing  to  seize  their  villains'  goods,  or  to  exact  villain 
services,  memory  and  proof  of  their  servile  condition 
would  be  wanting,  and  they  thus  emerged  into  the  rank  of 
freemen.  As  to  their  lands,  although  the  lord  could  not 
assure  them  to  the  villain  by  deed,  (for  this,  being  a  con- 
tract, would  impliedly  have  emancipated  him)  yet  the  lord, 
desirous  that  his  villain  should  have  some  permanent  es- 
tate, as  a  bounty  or  reward  perhaps  for  some  eminent  ser- 
vices, would  enter  on  the  roll  of  his  court  that  he  had 
given  such  a  one  an  estate  at  will,  to  hold  to  him  and  his 
heirs,  or  the  heirs  of  his  body;  and  this  customary  memo- 
randum or  direction  being  complied  with,  grew  at  length 
into  an  established  right,  and  such  tenant  was  called  'Ten- 
ant at  will,  according  to  the  custom  of  the  manor,'  or  Copy- 
holder, the  evidence  of  his  estate  being  a  copy  of  this  en- 
try in  the  lord's  court-roll. 

Tenants  in  Ancient  Demesne  were  either  soccage  tenants, 
freeholders  or  copyholders;  and,  whether  one  or  the  other, 
they  had  some  peculiar  privileges,  as  they  occupied  the 
king's  lands.  These  ancient  demesne  lands  were  the  es- 
tates which  the  king  had,  as  king,  to  support  his  family  and 
other  expenses,  and  were  originally  unalienable  by  the 
crown.  But  as  the  king  could  not  cultivate  them  himself, 
they  were  given  out  to  soccage  or  villenage  tenants,  who, 
from  being  supposed  to  be  always  in  the  service  of  the  king, 
possessed  various  immunities.  Thus,  they  were  exempted 
from  taxes  imposed  by  parliament,  unless  specially  named; 
they  were  not  taxed   for  the  pay  of  the  knights  of   the 


564  OF    THE    FEUDAL    LAW.  [Lect.  X. 

shire;  they  paid  no  toll  for  goods  in  market,  if  they  con- 
cerned husbandry  and  sustenance;  they  were  exempted 
from  serving  on  juries;  nor  were  they  impleaded  in  any 
but  their  own  manorial  courts.  These  high  privileges  con- 
tinue at  the  present  day,  though  the  services  to  which 
their  tenure  subjected  them,  have  mostly  been  changed  into 
money,  and  the  estates  have  very  generally  been  alienated 
from  the  crown. 

(6.)  Of  the  Royal  The  alienation  of  the  demesne  lands, 
Revenues,  and  their  and  the  decline  of  the  feudal  services  and 
various  mutations.       incidents?  is?  as  connected  with  the  royal 

revenues,  a  topic  of  some  curiosity,  and  of  additional  in- 
terest because  not  slightly  interwoven  with  the  progress  of 
liberty,  and  the  rise  of  the  Commons.  Before,  however, 
we  proceed  to  an  examination  of  this  subject,  it  may  be 
useful,  as  a  preliminary,  to  explain  a  variety  of  terms  fre- 
quently occurring  in  the  juridical  history  of  England,  and 
concerning  which  students  have  often  not  very  definite 
ideas.  The  terms  alluded  to,  are  Scutage,  Talliage,  Hi- 
dage,  Customs,  Subsidy,  Aid,  Benevolence,  Tenths  and 
Fifteenths,  Tax  and  Excise.  A  brief  explanation  of  these 
will  better  enable  us  to  trace  the  various  mutations  which 
have  taken  place  in  the  royal  revenue,  and  the  means  of 
supporting  the  English  government. 

1.  Scutage  and  Escuage  are  synonymous  terms. 
Every  tenant  of  a  knight's  fee  was  originally  bound  to 
serve  the  king  in  his  army  forty  days  in  every  year.  This 
personal  attendance  growing  onerous,  the  tenants  com- 
pounded for  it,  first  by  sending  a  deputy,  and  afterwards 
by  making  to  the  crown  a  pecuniary  satisfaction.  This 
composition  came  at  last  to  be  levied  by  assessments,  at  a 
certain  sum  for  every  knight's  fee,  under  the  name  of  Es- 
cuage or  Scutage,  from  scutagium,  a  shield.  Some  au- 
thors, however,  have  derived  this  word  from  scutum,  s 
coin  known  in  those  davs. 


Lect.  X.]  OP    THE     FEUDAL    LAW.  5fi5 

The  first  recorded  instance  of  a  pecuniary  commutation 
for  personal  military  services,  occurred  early  in  the  reign 
of  the  second  Henry,  when  he  planned  his  expedition 
against  Toulouse.  Shortly  after  this,  it  became  very  ge- 
neral, and,  from  circumstances,  very  onerous;  so  that  in  the 
reign  of  John  it  was  provided  by  Magna  Charta,  that  no 
scutage  should  be  levied  by  the  king  or  any  lord,  but  by 
the  consent  of  parliament.  The  charter  of  Henry  III. 
omitted  this  provision,  so  that  the  prerogative  of  imposing 
it  was  exercised  as  in  the  time  of  Henry  II.  Subsequent 
statutes,  however,  ordained  that  no  escuage  should  be  im- 
posed but  by  law;  and  from  this  power  of  parliament  ori- 
ginated the  Subsidies  and  Land  Tax  of  more  recent  times. 

Escuage  was  of  two  kinds,  viz.  uncertain  and  certain. 
If  the  commutation  were  uncertain,  the  tenure  remained 
knight's  service;  if  certain,  it  became  soccage;  and  Little- 
ton says  that  when  escuage  is  spoken  of  generally,  it  means 
uncertain  escuage;  or,  in  other  words,  that  the  tenure  by 
knight's  service  is  ever  presumed  in  the  first  instance;  but 
if  the  escuage  be  specially  referred  to  as  certain,  the  ten- 
ure is  without  doubt  soccage.  It  has  been  contended  by 
some  that  escuage  of  any  kind  is  not  a  tenure  or  service  at 
all,  but  a  mere  incident  of  tenure,  as  homage  is.  Of  this 
opinion  is  Madox.  In  his  Treatise  of  Tenures,  Wright 
has  taken,  however,  a  middle  ground,  insisting  that  though, 
in  general,  uncertain  escuage  was  a  fine,  or  sum  of  money, 
payable  as  a  commutation  for  personal  services,  yet  anci- 
ently a  payment  of  money  in  proportion  to  the  quantity 
of  land  held  by  tenants  in  knight's  service,  was  sometimes 
a  service  originally  reserved,  and  that  in  such  cases  the  es- 
cuage was  certainly  itself  the  tenure,  and  was  so  called  in 
contradistinction  to  the  genuine  tenure  by  knight's  service. 
It  is  manifest,  however,  (admitting  Wright's  views)  that 
Madox's  observation  applied  altogether  to  the  common 
idea  of  escuage,  viz.  the  commutation  of  personal  military 


566  OF    THE     FEUDAL    LAW.  [Lect.  X. 

services  for  money  or  other  things.  Still  we  think  that 
Madox  can  be  only  partially  correct;  for  if  the  escuage  be 
fixed,  as  it  then  becomes  soccage,  the  escuage  constitutes  a 
tenure,  and  cannot  be  regarded  as  a  mere  incident:  it  be- 
comes then  as  much  a  tenure  in  soccage  as  if  it  had  been 
originally  so  reserved. 

2.  Talliage  or  Tallage.  This  was  an  assessment  laid 
by  the  king  on  such  of  his  demesne  lands  as  lay  in  cities  or 
boroughs;  or  by  the  lords  who  held  lands  in  such  places. 
As  the  military  services  were  converted  into  escuage,  so 
the  services  imposed  by  the  tenure  in  burgage,  which  was 
a  soccage  tenure,  were  also  exchanged  for  a  regular  pecu- 
niary assessment,  and  talliage  was  to  the  burgage  tenure, 
what  escuage  was  to  the  tenure  by  knight's  service. 

3.  Hidage.  In  the  Saxon  times  every  hide  of  land  sup- 
ported its  soldier,  and  there  was  not,  as  in  feudal  times, 
any  personal  service;  but  the  land  itself  was  liable  to 
yield  certain  fruits,  which  enabled  the  crown  or  the  lord 
to  carry  on  wars.  After  the  Conquest,  this  continued  to 
be  the  case  as  to  all  lands  not  feudalized.  The  hidage, 
then,  was  a  pecuniary  composition  paid  by  tenants  holding 
hides  of  land,  in  lieu  of  the  grain,  provision  or  work  which 
otherwise  would  have  been  due  in  proportion  to  the  num- 
ber of  hides  tenanted  by  them.  These  hidages  were  at 
all  times  fixed  as  to  amount,  and  time  of  payment. 

4.  Customs.  These  were  sums  of  money,  or  portions 
of  a  commodity,  payable  by  merchants  to  the  king;  which 
dues  being  established  by  long  usage,  took  the  name  of 
customs.  They  were  payable  by  natives,  denizens  and 
strangers,  and  were  perpetual;  whereas  talliages,  subsidies 
&c.  were  imposed  occasionally.  How  these  customs  have 
been  variously  modified  in  modern  times,  will  be  known  to 
the  student  in  the  course  of  his  professional  reading,  and 
will  be  briefly  observed  on  when  we  come  to  speak  of 
taxes. 


Lft  r.  X.j  OF    THE     FEUDAL    LAW.  567     • 

Subsidy.  This  was  introduced  about  the  time  of  Ri- 
chard II.  and  Henry  IV.  and  took  place,  in  some  degree, 
of  scutage,  hidage,  talliage  &:c.  as  a  source  of  the  royal  re- 
venue.    It  was  imposed,  not  immediately  on  property,  but 
on  persons  in   respect  of  their  imputed  estates,  after  the 
nominal  rate  of  four  shillings  in  the  pound  sterling,  where 
the  valuation  was   on   lands,  and  two   shillings  and  eight 
pence  in  the  pound  on  goods.     The  merchandise  of  aliens 
paid  in  a  double  proportion.     The  clergy  granted  their  sub- 
sidies separately  from  the  laity.    The  assessment  of  a  subsi- 
dy was  made  according  to  an  ancient  valuation  of  the  landed 
propertv  of  the  kingdom:  so  that  one  subsidy,  at  that  low 
valuation,  raised  but  about  seventy  thousand  pounds.      No 
more  than   one  subsidy,  and  two  fifteenths  on  personal  es- 
tate, were  anciently  granted  at  any  one  time:  but  the  Span- 
ish invasion  in  15SS  induced  parliament  to  depart  from  this 
Ion 2:  established  rule,  and  Queen  Elizabeth  had  two  subsi- 
dies  and  four  fifteenths  granted  to  her.     As  money  sunk 
in  value,  these  subsidies  were  granted  in  greater  numbers, 
hat  in  1640  Charles  I.  desired  twelve  subsidies  from 
the  House  of  Commons,  payable  in  three  years.     I  decline, 
as  the  student  of  English  history  cannot  fail  to  become  fa- 
miliar with  them,  to  dwell  on  the  various  kinds  of  subsidy; 
such  as  the  Inward  or  Old  Subsidy:   the  New  Subsidy,  the 
One-third  Subsidy,  the  Two-thirds'"  Subsidy,  ice. 

6.  Tenths  and  Fifteenths.  These  were  temporary 
assessments  issuing  out  of  the  personal  property  of  the 
kingdom,  and  were  granted  by  parliament  as  exigencies 
demanded.  They  were  originally  an  actual  tenth  or  fif- 
teenth of  the  personal  estate,  that  is.  every  tenth  lamb, 
sheep,  hog,  fleece,  bushel  of  grain,  fee;  but  if  they  were 
ever  paid  in  kind,  it  must  have  be^n  early  period 

of  history.       The   ninths,   tenths  and  fifteen     a 

therefore,  must  be  considered  to  mean  those  respective  pro- 
portions of  a  defined  valuation  of  sonal  estate  of  the 


568  OF    THE     FEUDAL    LAW.  [Lect.  X 

kingdom.  The  personal  estate  of  every  county  and  shire 
was  valued  in  the  reign  of  Edward  III.  and  amounted,  at 
the  low  rate  of  valuation  employed,  to  twenty-nine  thousand 
pounds  for  the  whole  kingdom.  Hence,  when  in  more  mo- 
dern times  parliament  granted  two  fifteenths,  for  example, 
every  county,  having  the  scale  of  valuation  as  recorded  in 
the  Exchequer,  could  at  once  ascertain  its  proportion  of  the 
tax,  and  those  amounts  were  collected  into  the  royal  treasu- 
ry. The  tenth  was  the  same  tax  in  corporate  towns,  as  the 
fifteenth  in  the  counties  and  shires,  the  former  being  liable 
to  pay  only  the  tenth,  whilst  the  latter  paid  a  fifteenth  part 
of  the  valuation  put  on  personal  estate.  The  tenths  and 
fifteenths  were  of  course  invariable  in  amount,  and  diifered 
in  this  respect  also  from  a  subsidy. 

7.  Aids.  When  the  ordinary  sources  of  revenue  failed 
to  be  effectual,  a  general  contribution  or  Aid  was  granted. 
The  three  customary  ones  for  the  purposes  of  making  the 
lord's  eldest  son  a  knight,  for  marrying  his  eldest  daughter, 
and  for  the  redemption  of  his  person  from  captivity,  have 
been  already  explained,  but  -are  not  the  aids  to  which  we 
now  allude  as  being  a  source  of  royal  revenue.  The  king 
occasionally  requested  or  demanded  aids  to  meet  some  un- 
expected emergency  of  the  state  or  of  his  household.  As 
these  were  often  gratuitously  granted,  or  supposed  to  be  so, 
they  also  took  the  name  of 

8.  Bexevolexces.  Whether  these  occasional  sums  were 
in  fact  exacted  by  the  king,  or  granted  voluntarily  by  his 
subjects,  or  as  loans  to  enable  the  crown  to  prosecute  some 
favourite  enterprise,  they  were  called  by  the  general  name 
of  benevolence.-. 

9.  Excise.  Customs  are  duties  paid  to  government  on 
goods  imported  from  foreign  countries,  or  exported  to 
them;  or  on  goods  carried  coastwise.  The  chief  source, 
however,  of  revenue  from  customs  is  imported  merchan- 
dise, the  customs  on  exportation  being  chargeable  on  only 


Lect.  X.]  OF    THE    FEUDAL    LAW.  569 

a  few  articles;  and  those  on  commodities  carried  coastwise 
being  imposed  only  on  coals,  slate  and  stone.  The  duties 
of  Excise,  on  the  other  hand,  are  altogether  an  inland  im- 
position, charged  on  a  great  variety  of  articles,  either  on 
their  consumption,  or,  more  generally,  on  their  retail  sale. 
The  extreme  unpopularity  of  excises  arises,  not  from 
their  intrinsic  inequality  or  injustice,  for  in  this  respect,  as 
well  as  in  some  others,  they  are  preferable,  as  a  mode  of 
taxation,  to  the  customs;  but  from  the  arbitrary  and  sum- 
mary manner  in  which  they  have  at  all  times  been  collected. 
The  facility  with  which  such  duties  might  be  evaded,  in- 
duced government  to  appoint  for  their  collection  commis- 
sioners and  officers  invested  with  the  power  of  searching 
houses  at  any  time  of  the  day,  and,  in  some  cases,  even  by 
night,  for  exciseable  commodities.  These  powers  are  also 
very  summary;  without  trial  by  jury,  and  with  little  limi- 
tation from  the  general  principles  of  the  common  law. 

Such   powers  are  unavoidably  abused,  and   being   from 
their  nature  inquisitorial,  and   invasive  of  the  sanctity  of 
homes,  have  proved  a  source  of  complaint  from  their  first 
introduction.     There  is,  however,  a  collateral  benefit  which 
arises  from  this  tax,  namely,  that  it  is  frequently  the  means 
of  preserving  exciseable  drinks  and  provisions  from  nox- 
ious adulteration.      Excises  were  first  introduced  in  Eng- 
land in  1643,  on  the  motion  in  the  Commons  of  Mr  Py mi- 
me, although,  only  the  year  before,  the  Commons  had  de- 
clared that  the  rumours  of  their  intention  to  introduce  an 
excise  were  malignant  and  wholly  unfounded,  and  that  their 
scandalous  authors  should  be  apprehended,  and  brought  to 
condign  punishment.     This  tax  was  originally  a  war  mea- 
sure, growing  out  of   the  existing  civil  commotions,  and 
designed  to  be  temporary.     It  was  at  first  imposed  on  only 
a  few  articles;   these  have  been   continually  added  to,  so 
that  now  the  excise  duties  are  not  only  a  permanent  tax, 
72 


570  OF    THE    FEUDAL    LAW.  fLect.  X. 

but  constitute  one  of  the  most  abundant  sources  of  the 
royal  revenue. 

10.  Tax.  This  word  is  nomen  collectivum,  but  is  yet 
of  comparatively  modern  use.  It  is  derived  from  the 
Greek  Ta^,  order  or  command.  The  tax,  properly  so 
called,  came  in  lieu  of  the  various  methods  of  levying 
revenue,  so  that  we  now  hear  no  more  of  scutage,  hidage* 
subsidy,  tenths,  fifteenths  &c.  since,  all  have  given  place  to 
the  system  of  taxation.  The  imposition  of  taxes  is  a 
branch  of  the  legislative  power,  and  was  exercised,  though 
in  a  very  limited  degree,  by  the  Saxons  in  their  Wittenage- 
mote,  and  subsequently  by  the  Anglo-Norman  parliaments. 
On  the  full  establishment  of  the  feudal  system  in  England, 
the  crown  was  almost  entirely  sustained  by  revenues  de- 
rived from  its  demesnes,  and  such  occasional  supplies  as 
were  furnished  in  the  modes  already  stated.  The  few 
taxes  levied  in  England  in  those  times,  were  generally  de- 
manded by  the  king  at  his  pleasure,  until  Edward  I.  obli- 
gated himself  and  his  successors  to  levy  no  tax  but  by  the 
consent  of  the  realm. 

It  would  be  inconsistent  with  my  general  design  to  enter 
into  a  minute  explanation  of  the  various  species  of  tax 
known  to  the  history  of  English  legislation.  They  are  di- 
vided, as  we  shall  see  more  particularly  hereafter,  into  two 
great  classes,  viz.  Perpetual  and  Annual.  The  former  em- 
brace the  customs,  the  excise  duty,  the  stamp  duties,  pos- 
tages, the  duty  on  salt,  the  duties  on  houses  and  windows, 
on  coaches,  offices,  pensions  &c.  The  latter  comprehend 
the  land  tax  and  the  malt  tax;  all  of  which  will  be  briefly 
remarked  on  presently.  Customs,  commonly  called  du- 
ties, are  a  tax  paid  by  the  merchant  on  goods  imported  or 
exported  by  him,  though  the  term  is  more  generally  applied 
to  the  former.  These  duties  come  under  the  head  of  indi- 
rect taxes,  because  they  are  not  upon  things  possessed  and 
retained,  but  on  such  as  arc  for  consumption  or  sale,  and 


Lect.  X.]  OF    THE     FEUDAL     LAW.  571 

hence  are,  in  truth,  paid  by  the  consumer  and  not  by  the 
merchant.  Such  customs,  imposts  or  duties  are  scarcely 
felt  by  the  people,  who  generally  confound  them  with  the 
price  of  the  commodities,  and  are  thus  unconscious  of  the 
fact  of  taxation;  whereas  direct  taxation,  though  infinitely 
smaller  in  amount,  has  been  universally  unpopular,  and 
sometimes  odious  with  the  people.  Where  the  consumer 
is  made  directly  acquainted  with  the  tax,  as  is  more  the 
case  with  excises  of  every  description,  the  people  have  al- 
ways been  found  very  unfr-iendly  to  it. 

Having  explained  very  briefly  most  of  the  terms  con- 
nected with  the  subject  of  the  royal  revenues,  we  have  now 
to  recur  to  the  feudal  times,  and  take  a  hasty  survey  of 
some  of  the  sources  of  the  royal  revenues,  from  the  period 
of  the  Conquest;  of  the  changes  consequent  on  the  aliena- 
tion of  the  crown  or  demesne  lands;  and  of  the  gradual  de- 
cline of  the  feudal  incidents  and  services. 

The  revenue  of  the  Norman  kings  was  sufficiently  ample, 
from  the  extent  of  the  crown  lands,  from  their  arbitrary 
imposition  of  various  burthens,  and  from  the  profits  arising 
from  the  numerous  fruits  of  tenure.  The  alienation  of  the 
demesne  lands  was  however,  from  various  causes,  both  ra- 
pid and  wasteful;  and  the  interposition  of  several  laws  re- 
strictive of  their  alienation,  came  too  late  to  subserve  any 
valuable  purpose.  The  expedient  of  arbitrary  impositions, 
under  the  name  of  loans,  benevolences,  purveyance  &c.  to 
which  the  necessity  of  the  kings  forced  them  to  resort, 
was  not  suitable  to  the  less  tumultuary  times  which  suc- 
ceeded, and  to  the  more  settled  notions  of  property,  and 
was  consequently  resisted  and  destroyed,  step  by  step,  in 
the  subsequent  periods  of  the  monarchy.  The  feudal  in- 
cidents shared  the  same  fate.  The  people,  by  their  more 
improved  condition  and  habits,  and  by  changing  their  mili- 
tary into  civil  feuds;  and  the  judges,  by  an  interpretation 
suited  to  the  spirit  of  the  times;  concurred  to  modify  the 


57^  (>F    THE    FEUDAL    LAW.  [Lect.  \. 

severity,  and  to  restrain  the  limits  of  the  feudal  tenures. 
The  incidental  operation,  also,  of  several  circumstances, 
such  as  the  payment  of  fixed  money  rents,  instead  of  the 
performance  of  personal  services,  which  money  rents  be- 
came continually  less  in  proportion  to  the  greatly  increas- 
ing value  of  estates,  diminished  very  sensibly  the  amount 
of  the  perquisites  of  the  feudal  lords,  and  of  the  revenues 
of  the  crown.  The  abolition  of  the  court  of  Wards  and 
Liveries  after  the  Restoration,  and  the  conversion  of  mili- 
tary into  soccage  tenures,  which  soon  followed,  put  a  final 
end  to  the  intolerable  grievances  of  a  system  which  had 
oppressed  England  for  several  centuries.  The  sources  of 
royal  revenue  being  now  greatly  impaired,  it  became  neces- 
sary to  provide  in  their  stead  a  more  certain  and  determi- 
nate income.  The  land-tax,  in  its  modern  shape,  took 
place  of  those  methods  of  rating  property,  and  persons  in 
respect  of  their  property,  of  which  I  have  just  spoken.  It 
has  been  stated  that  the  assessment  on  which  the  subsidies 
were  founded,  being  made  according  to  an  ancient  valua- 
tion of  lands,  a  subsidy  in  the  time  of  queen  Elizabeth  fell 
as  low  as  seventy  thousand  pounds;  while  a  modern  land-tax 
yields  something  more  than  two  millions.  From  various 
causes  a  subsidy,  in  succeeding  reigns,  yielded  still  less,  and 
went  on  continually  decreasing.  Thus,  a  man  was  taxed  only 
in  his  own  county  or  shire,  though  he  had  an  estate  in  others, 
of  which  only  loose  estimates  would  be  made,  the  favour 
running  naturally  against  the  crown;  losses  in  the  value  of 
estates  were  exaggerated,  and  improvements  carefully  con- 
cealed; and  while  the  small  proprietors  went  to  decay,  the 
large  did  not  increase  the  amount  of  their  subsidy. 

On  the  commencement  of  the  civil  wars  between  Charles 
and  his  parliament,  the  latter,  in  order  to  raise  a  revenue, 
introduced  the  practice  of  laying  weekly  and  monthly  as- 
sessments of  a  specific  sum  on  the  counties,  levying  them 
both  on  lands  and  personal  estates.     And  after  the  Restora- 


Lect.  X.]  OP    THE    FEUDAL    LAW.  .573 

tion,  the  monthly  assessments  being  now  established  by- 
custom,  producing  a  more  certain  revenue,  and  being  raised 
by  commissioners  named  by  parliament,  the  subsidies,  in 
turn,  fell  into  total  disuse,  and  assessments  were  granted  as 
the  national  emergencies  required.  Hence  we  see  the  in- 
correctness of  the  popular  opinion  that  the  land-tax  was 
first  introduced  in  the  reign  of  William  III.  as  all  the  im- 
posts we  have  mentioned,  except  the  tenths  and  fifteenths, 
were  land-taxes.  In  William's  reign,  however,  a  new  as- 
sessment of  estates  took  place,  according  to  which  a  supply 
of  five  hundred  thousand  pounds  was  equal  to  one  shilling 
in  the  pound  of  the  value  of  estates  then  given  in.  The 
method  of  raising  it  was  by  charging  a  particular  sum  on 
each  county,  assessed  on  individuals  according  to  both  their 
real  and  personal  estates.  This  substitution  of  a  tax  on  the 
people  in  lieu  of  the  revenue  of  demesne  lands,  and  the 
fruits  of  tenancies  in  capite,  was  eminently  calculated  to 
diminish  the  arbitrary  power  of  the  sovereign.  Yet  the 
first  effects  of  this  dependence  of  the  king  on  the  repre- 
sentatives of  the  nation  for  a  supply,  were  happy  neither 
for  him  nor  his  subjects;  the  former  being  too  frequently 
driven  by  the  dilapidation  of  the  royal  estates,  and  the  di- 
minution of  the  feudal  fruits,  to  adopt  those  irregular 
methods  of  supply  which  had  now  become  odious;  and  the 
latter,  while  they  resisted  these  arbitrary  exactions,  being 
with  difficulty  brought  to  understand  that  the  real  exigen- 
cies of  the  crown  were  their  own.  Hence  those  everlast- 
ing disputes  respecting  subsidies  and  exactions  which  em- 
broiled the  kings  with  their  parliaments;  and  much  apology 
is  certainly  to  be  made  for  the  unhappy  race  of  Steuart, 
who,  between  their  poverty  and  their  attachment  to  an  an- 
cient prerogative,  became  the  victims  of  the  new  born  in- 
dependence of  the  times.  The  last  time  that  taxes  were 
levied  by  way  of  subsidy,  was  when  the  Commons  voted 


574  OF    THE    FEUDAL    LAW.  [Lect.  X. 

to  Charles  II.  four  subsidies,  to  relieve  him  from  the  pre- 
carious state  of  his  revenue. 

The  royal  revenues  embrace,  or  formerly  embraced, 
a  variety  of  other  perquisites  besides  those  we  have  men- 
tioned; and  as  the  abolition  of  the  feudal  tenures  after  the 
Restoration,  rendered  it  necessary  to  remodel  the  revenue 
system,  it  may  be  useful  to  present  the  student  with  a  ge- 
neral view  of  the  subject,  which  we  shall  endeavour  to 
render  as  brief  as  possible. 

The  entire  revenues  of  England  are  divided  into  two 
great  classes,  Ordinary  and  Extraordinary.  The  former  is 
subdivided  into  Ecclesiastical  and  Temporal;  and  the  latter 
into  Annual  and  Perpetual. 

The  Ordinary  Ecclesiastical  revenue  may  arise, 

1.  From  the  custody  of  the  vacant  temporalities  of  arch- 
bishops and  bishops.  The  king,  in  legal  contemplation, 
being  the  founder  of  all  the  bishoprics  in  the  kingdom, 
they  revert  to  him  on  becoming  vacant,  and  also  that  they 
may  be  preserved  until  a  successor  is  appointed.  The 
mesne  profits,  however,  belong  to  the  crown,  without  any 
account  of  them  to  the  successor.  Some  of  the  kings 
were  in  the  habit  of  keeping  the  sees  vacant,  that  they 
might  enjoy  the  temporalities,  and  commit  destructive 
waste.  They  sometimes  even  refused  to  restore  them  un- 
less purchased  at  a  very  onerous  price;  and  with  these 
views,  queen  Elizabeth  kept  the  see  of  Ely  vacant  nearly 
twenty  years.  This  source  of  revenue  is  at  present  nearly 
nominal. 

2.  Corodies  appertaining  to  every  bishopric,  were  an- 
ciently another  source  of  ecclesiastical  income.  This  is  a 
right  possessed  by  the  king  of  sending  one  of  his  chaplains 
to  be  maintained  by  a  bishop,  or  of  having  a  pension  al- 
lowed him,  until  the  bishop  promotes  the  chaplain  to  a 
benefice.      This,  also,  has  gone  into  total  disuse. 

3.  Extra-parochial  tithes.  In  such  places  as  are  not 
within  the  limits  of  any   parish,  as  forests,  the  king  is  en- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  575 

titled  to  all  tithes,  he  not  being  a  mere  layman,  but  perso- 
na mixta. 

4.  The  first  fruits  and  tenths  of  all  spiritual  preferments 
vest  in  the  king,  as  the  spiritual  head  of  the  church.  These 
are  now  vested  in  perpetual  trustees,  by  statute  2  Anne, 
so  as  to  constitute  a  fund  for  the  augmentation  of  poor 
livings,  and  are  known  by  the  name  of  Queen  Anne's 
Bounty. 

The  Ordinary  Temporal  revenue  arises, 

1.  From  the  profits  of  the  king's  demesne  lands,  as  has 
been  previously  stated. 

2.  From  the  hereditary  excise  granted  by  parliament  to 
Charles  II.  his  heirs  and  successors,  in  lieu  of  the  profits 
of  feudal  tenures,  and  the  right  of  purveyance  and  pre- 
emption; all  of  which  were  abolished  in  that  reign.  Pur- 
veyance and  pre-emption  consisted  in  the  prerogative  right 
of  purchasing  through  the  king's  purveyors,  any  thing 
they  might  require  for  his  household,  at  an  appraised  va- 
luation, in  preference  to  all  others,  and  even  against  the 
consent  of  the  owners;  and  also  of  impressing  the  subjects' 
horses,  carriages  &c.  to  carry  on  the  king's  business,  at 
such  prices  as  the  purveyors  should  affix. 

3.  Profits  arising  from  licences  granted  by  the  crown  to 
retail  wines.  These,  in  addition  to  the  hereditary  excise 
just  mentioned,  were  settled  on  Charles  II.  in  compensa- 
tion of  the  feudal  and  other  revenues  of  which  he  had  been 
deprived.  They  were  abolished,  however,  by  statute  30 
George  II.  c.  19,  and  in  lieu  thereof,  parliament  granted  an 
annual  sum  of  seven  thousand  pounds,  issuing  out  of  the 
new  stamp  duties  on  wine-licences. 

4.  Profits  arising  from  the  royal  forests,  by  amercement 
t©  be  imposed  by  the  Forest  Courts  for  violations  of  the 
game  laws.  This  source  of  revenue  is  now  almost  wholly 
unknown. 


576  OF    THE    FEUDAL    LAW.  [Lect    X. 

5.  Profits  accruing  from  the  courts  of  justice.  They 
consist  of  fines  imposed  on  offenders  against  the  criminal 
laws  of  the  country;  sums  forfeited  under  recognizances; 
amercements  levied  on  defaulters;  fees  of  various  kinds 
on  the  issuing  of  legal  process,  affixing  seals  &c.  Most  of 
these  are  now  granted  out  to  subjects,  or  appropriated  to 
defined  uses,  so  that  few  of  them  come  into  the  royal  trea- 
sury. 

6.  Royal  fish,  consisting  of  whales  and  sturgeon,  which, 
if  cast  on  British  shores,  or  caught  in  their  vicinity,  be- 
long to  the  crown.  This  prerogative  is  said  to  have  arisen 
as  a  compensation  to  the  king  for  the  protection  given  by 
him  to  the  seas  against  pirates;  and  also  that  the  queen's 
wardrobe  may  be  supplied  with  whalebone! 

7.  Wrecks  were  also  at  one  time  a  source  of  revenue. 
If  a  vessel  were  wrecked,  or  lost  at  sea,  and  any  of  the 
cargo  came  to  land,  it  belonged  to  the  king,  for  the  reason 
first  assigned  for  vesting  in  him  the  royal  fish.  Henry  I. 
ordained  that  it  should  not  be  considered  wreck  where  any 
person  escaped  alive  from  the  vessel.  Henry  II.  extended 
this  to  the  escape  of  any  living  creature,  provided  the 
goods  were  claimed  within  three  months.  Richard  I.  went 
still  further,  and  made  it  no  wreck  if  the  owner  were  ship- 
wrecked" and  escaped;  if  he  perished,  his  children,  bro- 
thers or  sisters  should  have  all;  but  in  default  of  such  re- 
latives, it  vested  in  the  king.  This  humane  feeling  was 
again  further  expanded  in  the  reign  of  Henry  III.  who 
provided  that  it  should  not  be  wreck  whenever  the  goods 
could  be  identified.  By  the  statute  3  Edward  I.  the  time 
for  reclaiming  the  goods  allowed  by  Henry  II.  was  extend- 
ed to  a  year  and  a  day;  but  it  enacted  that  if  any  man, 
dog  or  cat  escaped,  it  should  be  no  wreck.  This  statute 
threw  the  law  of  this  subject  into  temporary  confusion; 
but  the  courts  decided,  first,  that  the  animals  mentioned 
were  merely  named  by  way  of  example;  and  finally,  that 


tect.  X.]  OF    THE    FEUDAL    LAW.  577 

if  the  goods  could  be  identified  in  any  way,  they  were  not 
wreck;  so  that  the  law  was  restored  to  the  condition  in 
which  it  was  prior  to  the  statute  of  Edward.  At  this 
time,  the  goods,  if  not  of  a  perishable  nature,  must  be 
kept  by  the  sheriff  of  the  county  for  a  year  and  a  day, 
and  if  not  then  reclaimed,  vest  in  the  king.  If  they  are 
perishable,  the  sheriff  must  sell  them,  and  the  proceeds 
will,  in  like  manner,  be  refunded  to  the  owner,  or  pass 
into  the  royal  exchequer. 

8.  Royal  mines.  All  gold  and  silver  mines  discovered 
within  the  kingdom  belong  to  the  crown,  as  it  alone  pos- 
sesses the  power  of  coinage,  and  should  therefore  be  fur- 
nished with  the  materials.  If  mines  of  other  metals  be 
discovered,  but  with  the  precious  metals  present  in  them, 
they  are  not  royal  mines;  but  the  king  is  entitled  to  the 
gold  and  silver  taken  from  them,  on  paying  for  them  as 
base  metal,  this  being  the  only  object  for  which  the  mines 
can  be  legitimately  wrought. 

9.  Treasure-trove.  This  consists  of  gold,  silver,  plate 
or  bullion  found  hidden  in  the  earth  or  other  private 
places,  the  owner  being  unknown,  and  not  subsequently 
ascertained.  These  belong  to  the  king.  In  England,  as 
well  as  in  feudal  countries  generally,  death  was  the  penal- 
ty of  concealing  treasure-trove  from  the  king;  but  it  is 
now  punished  only  by  fine  and  imprisonment. 

10.  Waifs.  If  goods  are  stolen  and  waived,  or  cast 
away,  by  the  thief  in  his  flight,  they  vest  in  the  king,  as 
a  punishment  of  the  owner  for  not  making  fresh  pursuit 
after  the  thief.  If  the  goods  are  taken  by  the  owner  be- 
fore a  seizure  is  made  for  the  king's  use,  though  at  any  pe- 
riod after  the  theft,  they  return  to  the  owner,  and  cannot 
be  made  waifs.  The  goods  of  foreign  merchants  never  be- 
came waifs. 

11.  Estrays.  These  consist  of  certain  valuable  animals 
which   have  strayed   from  their  owner,  who  remain?  un- 

73 


578  OF    THE    FEUDAL    LAW.  [Lect.  X. 

known.  They  vest  in  the  king,  after  compliance  with  cer- 
tain means  for  ascertaining  the  owner.  This  prerogative 
has  generally  been  granted  by  the  crown  as  a  franchise  to 
the  lords  of  manors. 

12.  Forfeitures.  The  laws  of  England,  from  the  ear- 
liest times,  have  attached  to  the  commission  of  certain 
crimes  a  total  forfeiture  of  personal  property,  and  a  tempo- 
rary, and  sometimes  absolute  confiscation  of  lands.  All  pro- 
perty is  the  creature  of  positive  law,  and  when  a  member  of 
society  violates  its  fundamental  regulations,  and  shows  him- 
self no  longer  worthy  of  protection  to  himself  and  proper- 
ty, his  possessions  revert  to  the  common  stock,  unless  ex- 
press provision  to  the  contrary  is  made  in  behalf  of  his  re- 
latives, as  is  the  case  in  some  countries.  In  England  they 
vest  in  the  king,  in  whom  the  dignity  and  sovereignty  of 
the  nation  are  supposed  chiefly  to  reside.  At  one  period 
forfeitures  were  a  prolific  source  of  revenue  to  the  crown. 
But  the  severity  of  penal  jurisprudence  has  been  greatly 
mitigated  as  religion,  knowledge,  and  the  true  theory  of 
government  came  to  be  better  understood,  and  more  gene- 
rally diffused. 

13.  Deodands.  This  is  a  forfeiture  of  certain  personal 
things,  not  as  a  direct  punishment  for  crime,  but  rather  as 
a  means  of  rendering  persons  more  cautious  of  human  life. 
If  any  personal  thing  happened  to  be  the  immediate  instru- 
ment of  the  death  of  any  one,  it  became  forfeited  to  the 
king,  under  the  name  of  deodand,  because  it  was  to  be  ap- 
plied by  the  king's  almoner  to  pious  uses.  It  is  usual  at 
the  present  day  for  the  jury  who  pass  on  the  case,  to  con- 
fiscate, if  practicable,  some  very  inconsiderable  part  of  the 
thing  which  occasioned  the  death;  as  a  wheel  instead  of  the 
entire  carriage.  Deodands  have  not  been  unknown  to  the 
jurisprudence  of  this  country.  They  were  abolished  in 
Maryland  only  as  late  as  the  year  1S09. 


Lect.  X.]  OF    THE     FEUDAL    LAW.  579 

14.  Escheats.  In  legal  contemplation,  all  the  lands  in 
England  are  derived  from  the  crown.  If,  therefore,  any 
one  dies  leaving  no  legal  heirs,  his  real  estate  reverts  to, 
and  vests  in  the  king. 

15,  The  last  source  of  the  king's  ordinary  temporal 
revenue  is  his  custody  of  the  estates  of  idiots,  which  is 
vested  in  him  as  the  magnus  parens  patrise. 

The  king,  from  a  very  early  period,  had  the  wardship  of 
the  lands  of  such  persons,  and  after  suitably  maintaining 
them,  appropriated  the  surplus  revenue  to  his  own  use. 
This  prerogative  formerly  belonged  to  the  lord  of  the  fee; 
but  the  king  obtained  it  sometime  prior  to  the  statute  17 
Edward  II.  c.  9,  as  that  statute  was  certainly  in  affirmance 
of  the  then  common  law.* 

The  various  sources  of  ordinary  ecclesiastical  and  tem- 
poral revenue  which  we  have  enumerated,  having  in  time 
become  unproductive,  or  at  least  inadequate  to  the  support 
of  government,  it  became  necessary  to  resort  to  other 
means,  and  these  constitute  what  is  called  the  Extraordi- 
nary revenue.  This  consists  of  various  species  of  tax  im- 
posed by  the  Commons,  who  in  parliament  usually  resolve 
themselves  into  a  committee  of  ways  and  means,  to  delibe- 
rate on  a  scheme  of  taxation,  generally  proposed  to  them 
by  the  Chancellor  of  the  Exchequer. 

These  taxes  are  either  Annual  or  Perpetual.  The  Annual 
extraordinary  revenue  chiefly  consists  of  the  land-tax  and 
the  malt-tax.  The  former  has  been  mentioned  as  having 
superseded  hidage,  talliage,  subsidy  &c.  It  is  raised  by 
charging  on  each  county  a  specific  sum,  according  to  a  valu- 
ation given  in  1692,  and  this  sum  is  apportioned  by  com- 
missioners, and  charged  on  individuals  owning  lands;  for 
the  payment  of  which  their  personal  as  well  as  real  estate 
is  liable.  By  the  recent  statutes  38  and  42  George  III. 
the  land-tax  has  been  made  perpetual. 

*  4  Coke's  Reports,  126. 


580  OF    THE    FEUB-AL    LAW.  [Lect.  X. 

The  m alt-tax,  which  originated  in  1697,  remains  annual, 
and  is  an  excise,  not  only  on  malt,  which  gives  name  to  the 
tax,  but  on  various  liquors  the  consumption  of  which 
would  much  interfere  with  the  use  of  malt.  This  tax 
generally  raises  the  nett  sum  of  about  six  hundred  thou- 
sand pounds. 

The  Perpetual  extraordinary  revenues  are  various,  and 
consist, 

1.  Of  Customs.  These  are  duties  imposed  on  imports 
and  exports,  and  have  been  explained  as  far  as  our  limits 
will  admit.  Some  small  ones,  however,  have  not  been 
mentioned.  These  are  first,  the  Alien's  duty,  a  petty 
custom  of  threepence  in  the  pound,  paid  by  aliens  for  all 
commodities  exported  or  imported  by  them,  and  which  are 
in  addition  to  the  ordinary  customs  of  the  realm.  This 
duty,  however,  the  legislature  had  the  good  sense  to  re- 
peal by  statute  24  George  III.  except  as  to  the  city  of 
London,  in  which  a  small  duty,  called  scavage,  is  still  ex- 
acted on  the  goods  of  aliens.  Secondly,  Prisage  or  But- 
lerage  on  wines.  This  consisted  of  the  right  of  taking 
two  tons  of  wine  from  every  English  or  foreign  vessel 
which  imported  twenty  or  more  tons  of  wine.  It  was 
commuted  by  Edward  I.  for  two  shillings  duty  on  every 
ton  imported  by  aliens;  and  this  took  the  name  of  butler- 
age,  because  it  was  paid  to  the  king's  butler.  Thirdly, 
Subsidy.  This  was  a  small  duty  imposed  by  parliament  on 
the  three  staple  commodities,  wool,  woolfells  and  leather, 
in  addition  to  the  regular  customs,  which  were  called  cos- 
tuma  antiqua  et  magna,  in  contradistinction  to  these  va- 
rious petty  customs,  which  took  the  name  of  costuma  par- 
va  et  nova.  Fourthly.  Tonnage  was  the  regular  duty  on 
all  wines  imported,  payable  after  a  certain  rate  for  every 
ton,  and  was  exclusive  of  the  prisage  or  butlerage.  Fifth- 
ly. Poundage  was  an  ad  valorem  duty  of  a  shilling  in  the 
pound  on  all  merchandise  whatever.     Tonnage  and  pound- 


Lect.  X.]  OF    THE    FEUDAL    LAW.  581 

age  were  usually  granted  by  parliament  to  the  king  at  the 
same  time,  and  took  the  name  of  the  Subsidy  of  tonnage 
and  poundage.  These  minute  distinctions  are  at  the  pre- 
sent day  but  little  regarded  by  any  but  the  officers  of  the 
customs,  the  general  result  being  embraced  under  the  com- 
prehensive term,  customs. 

2.  Excise  on  things  consumed,  or  on  the  retail  sale 
thereof,  is  the  next  great  division  of  the  perpetual  extra- 
ordinary revenue,  and  has  been  already  sufficiently  ex- 
plained.* 

3.  Duty  on  Salt.  This  is  an  excise  of  three  shillings  and 
four  pence  imposed  on  every  bushel  of  salt  by  various  sta- 
tutes, commencing  with  those  that  were  passed  in  the  reign 
of  William  III.  It  is  not  usual  to  class  this  duty  with  the 
excises;  but  this  appears  to  be  merely  because  it  is  not  un- 
der the  direction  of  the  usual  excise  commissioners.  This 
tax  was  temporary  until  the  statute  26  George  II.  c.  3, 
made  it  perpetual. 

4.  Postage,  or  the  duty  imposed  for  the  carriage  of  let- 
ters, also  belongs  to  this  head  of  perpetual  extraordinary 
revenue,  and  was  fully  established  in  the  year  1654.  This 
has  been  found  at  all  times  a  very  popular  species  of  tax, 
and  has  likewise  proved  a  very  productive  one. 

5.  Stamp  duties.  These  are  taxes  imposed  on  various 
written  aftd  printed  instruments,  whether  of  a  legal  or 
merely  private  nature;  so  that  parchment  and  paper  for 
these  purposes  must  be  stamped,  and  cannot  be  obtained  or 
used  unless  the  tax  be  paid  at  the  same  time.  Mercantile 
instruments  of  nearly  every  description;  legal  proceedings 
of  most  kinds;  almanacks,  newspapers,  pamphlets  of  less 
than  six  sheets;  wine-licences,  &c.  require  to  be  stamped; 
the  tax  to  be  paid,  varies  in  amount  from  a  penny  to  ten 
pounds.    This  duty  was  first  imposed  in  the  reign  of  Wil- 

*  Vide  supra,  568.  575. 


582  OF    THE    FEUDAL    LAW.  [Lect.  X. 

liam  and  Man*,  and  has  continued  ever  since  to  be  a  pro- 
fitable but  rather  unpopular  tax. 

6.  House-tax.  This  tax,  in  one  form  or  other,  is  of 
great  antiquity.  It  is  mentioned  in  Domesday  Book  under 
the  name  of  fumage,  it  being  a  small  sum  due  by  custom 
to  the  king  for  every  chimney  in  a  house.  This  was  made 
in  the  reign  of  Charles  II.  a  legal  and  perpetual  tax  of  two 
shillings  on  every  hearth.  This  hearth  money  becoming 
very  unpopular,  it  was  abolished  by  statute  1  William  and 
Mary,  but  was  revived  under  a  new  name,  by  statute  7 
William  III.  by  a  tax  on  all  houses  except  cottages.  Its 
amount  has  greatly  fluctuated;  but  by  statute  4S  George  III. 
it  ranges  from  one  shilling  and  sixpence  to  two  shillings 
and  ten  pence  in  the  pound  of  the  yearly  rent  or  value, 
from  five  to  forty  pounds  and  upwards.  This  has  been 
somewhat  reduced  by  the  late  statute  4  George  IV. 

7.  The  window-tax  was  first  imposed  by  statute  7  Wil- 
liam III.  c.  18,  and  was  only  where  the  windows  exceeded 
nine  in  each  house.  By  statute  4S  George  III.  c.  55,  the 
amount  of  tax  ranges  from  six  shillings  and  sixpence  to 
ninety-three  pounds,  two  shillings  and  sixpence,  in  propor- 
tion to  the  number  of  windows  from  six  to  one  hundred 
and  eighty;  and  every  window  exceeding  that  number 
pays  the  additional  sum  of  three  pounds. 

8.  Tax  on  male  servants.  This  was  first  imposed  by 
statute  17  George  III.  and  embraces  nearly  every  male  ser- 
vant except  those  employed  in  trade,  manufactures  and 
husbandry.  By  statute  48  George  III.  the  minimum,  or 
tax  for  one  servant,  is  two  pounds  four  shillings,  and  for 
eleven  and  upwards,  seven  pounds  one  shilling.  Bachelors 
pay  the  additional  sum  of  one  pound  fourteen  shillings  for 
each  male  servant.  These  rates  were  considerably  reduced 
by  statute  4  George  IV.  c.  11. 

9.  Hackney-coach-licences.  This  tax  commenced  in 
1654,  and  has  continued  ever  since.  It  produces  annually 
about  twenty-six  thousand  pounds. 


Lect.  \  OF    THE    FEUDAL    LAW.  583 

10.  Offices  and  Pensions.  This  is  a  tax  of  one  shilling 
in  the  pound  on  all  salaries,  fees  and  pensions  which 
exceed  a  hundred  pounds  per  annum.  It  was  introduced 
by  statute  31  George  II.  and  has  always  been  a  very  popu- 
lar tax. 

Formerly  all  these  taxes  were  funded  separately  for  the 
payment  of  monies  loaned  to  government  on  their  respec- 
tive credit.  This  being  found  inconvenient,  as  the  taxes 
were  continually  increasing  in  number,  they  were  at  length 
all  united  into  three  distinct  funds,  and  pledged  in  like 
manner,  with  the  superadded  faith  of  parliament.  These 
three  funds,  namely,  the  Aggregate,  General,  and  South- 
Sea  Funds,  discharge,  in  the  first  instance,  all  interest  and 
annuities  which  were  formerly  charged  on  each  distinct 
fund;  and  the  surplus  is  then  consolidated,  and  constitutes 
what  is  called  the  Sinking  Fund,  because  intended  gradually 
to  diminish  or  sink  the  national  debt,  which,  from  the  time 
of  William  III.  to  our  own  day,  has  increased  from  about 
fourteen  millions  to  the  rather  alarming  amount  of  nearly 
one  thousand  millions  sterling! 

The  foregoing  somewhat  hasty  account  of  the  royal  reve- 
nues, from  the  Conquest  to  the  present  day,  will  perhaps 
sufficiently  contrast  the  servile,  precarious  and  extorted 
revenues  of  feudal  times,  with  the  voluntary,  secured  and 
liberal  resources  of  a  free  and  powerful  government;  which, 
though  it  has  waged  continual  wars,  and  on  a  scale  infinitely 
more  extended  than  was  known  in  the  feudal  ages,  has 
nevertheless  fostered  agriculture,  commerce  and  manu- 
factures, whilst  the  most  liberal  protection  has  been  given 
to  religion  and  knowledge.  The  nation  has  sometimes 
supplied  the  government  for  its  annual  disbursements  with 
not  less  than  one  hundred  and  twenty  millions,  a  sum 
which  perhaps  the  rest  of  Europe  would  have  been 
scarcely  able  to  supply.  It  is  now  time,  however,  that  we 
should  part  with  this  subject,  and  pursue  the  remaining  to- 
pics of  the  lecture. 


584  OF    THE    FEUDAL    LAW.  [Lect.  X. 

At  the  close  of  the  preceding  division 
(7.)  Of  the  Rise  of  r  o 

the    English    Cora-  of  our  subject,  I  intimated  that  the  dila- 

mons'  pidation  of  the  royal  estates,  and  the  di- 

minution of  the  feudal  fruits,  induced  the  adoption  of  va- 
rious arbitrary  exactions,  which,  in  the  time  of  the  Stuarts, 
tended  greatly  to  embroil  the  kings  with  their  parliaments, 
and  finally  terminated  in  the  decapitation  of  Charles  I.  and 
the  abdication  of  James  II. 

No  point  of  English  history  has  so  excited  the  prejudices 
and  discussions  of  party,  as  the  character  of  the  adminis- 
tration of  these  princes.  The  Whig  party  consider  them 
as  usurpers  on  the  liberties  of  their  people;  the  Tory,  as 
only  exercising  their  ancient  prerogatives,  in  times  no 
longer  fitted  for  their  exercise.  To  the  latter  conclusion  we 
own  we  have  always  leaned,  since  it  must  be  confessed 
that  something  is  to  be  allowed  for  the  force  of  monarchical 
education,  kings  being  generally  taught  to  value  as  their 
own  the  rights  and  prerogatives  of  their  predecessors. 
The  controversy  were  less  interesting  to  us  at  this  day,  had 
it  not  involved  the  question  of  the  ancient  freedom  of  the 
English  constitution,  and  the  antiquity  of  the  House  of 
Commons.  Every  one  will  form  his  own  judgment  on 
these  questions,  in  his  study  of  English  history;  but  I  can- 
not forbear  a  few  remarks  on  the  genius  of  the  English  go- 
vernment in  the  earlier  times,  as  connected  with  the  subject 
of  our  inquiry. 

Whatever  equality  the  invaders  of  the  Roman  empire 
might  have  brought  with  them  from  their  forests,  it  is  ap- 
parent that  it  could  not  Icing  exist  in  the  new  situation  in 
which  they  found  themselves.  Equality  is  easily  preserved 
where  the  nation  is  small  and  indigent,  and  as  certainly 
disappears  in  opposite  circumstances.  The  whole  history 
of  the  feudal  kingdoms  proves  the  extreme  inequality  of 
condition  that  prevailed;  and  the  low  estate  of  the  commons 
al  thai  time  is  so  visible  at  every  turn,  that  only  the  most 


Lect.  X.]  OF    THE    FEUDAL    LAW.  585 

fanciful  theorist  could  imagine  them  to  possess  any  weight 
or  consideration  in  the  state.     Causes  which  readily  sug- 
gest themselves,  rendered  this  eminently  the  case  under 
the  Norman  kings;  nor  can  we  find  that  under  the  Saxon 
government,  circumstances  were  much  more  auspicious  to 
the  body  of  the  people.     Whatever  obstructions  the  royal 
power  found  to  its  tyrannical  exercise,  were  opposed  by  its 
turbulent  aristocracy;  for  this  all  the  privileges,   all  the 
charters,  all  the  limitations  of  prerogative  were  created;  and 
during  all  these  struggles,  the  people,  properly  so  called, 
were  effectually  out  of  view,  because  they  formed  no  part 
of  the  political  state.     Even  when  provision  was  made 
against  the  tyrannical   oppression  of  the  king,   the  very 
phrase  shows  the  contemptibleness  of  the  commons.     Wm/- 
his  liber  homo,'  says  Magna  Charta;  a  phrase  so  far  from 
applying  to  the  commons  of  England,  or  exhibiting  any 
care  for  their  rights,  that  it  in  fact  concerned  that  class  only 
which  stood  in  contradistinction  to  the  commonalty;  liber 
homo  meaning  any  thing  but  those  indigent  and  inconsi- 
derable individuals  from  whom  the  English  commons  were 
afterwards  to  arise.      It  is  true,  indeed,  that  every  subject 
of  England  at  this  day,  appropriates  to  himself  the  benign 
enactments  of  the  charters  and  limitations  of  prerogative 
alluded  to,  and  that  Magna  Charta  is  now  a  panoply  to  all; 
but  we  must  look  for  the  origin  of  this  in  times  and  causes 
much  nearer  our  own  day.      It  is  so  far  unnecessary  to  de- 
monstrate this,  that  we  cannot  rationally  come  to  any  other 
conclusion.     It  is  certain  that  in  F ranee  the  popular  assem- 
blies fell  speedily  into  disuse,  from  their  unwieldly  nume- 
rousness,    and    consequent   unfitness   for   business.     It  is 
equally  certain  that  the  Saxon  Wittenagemote,  which  no- 
minally consisted  of  all  the  principal  landholders,  was  ill 
attended.     It  is,  we  think,  a  mistake  of  the  party  cham= 
pions  who  have  approached  this  question,  to  imagine  that 
the  privilege  of  attending  these  assemblies  was  duly  esti- 
74 


586  OF    THE    FEUDAL    LAW.  [Lect.  X 

mated,  and  eagerly  used.  The  truth  is  that  it  was  re- 
garded as  a  burden,  not  as  a  privilege,  and  the  business 
fell  naturally  into  those  hands  which  larger  interests  and 
comparative  intelligence  rendered  fitter  for  it;  and  both  in 
England  and  France,  the  smaller  landholders,  after  dimin- 
ishing greatly  in  number  and  importance,  and  finally  being 
almost  swallowed  up,  at  length  disappeared  wholly  from 
these  parliamentary  assemblies.  The  Norman  conquest, 
moreover,  had  the  necessary  effect  to  confine  the  king's 
counsellors,  (so  the  parliament  was  called)  to  a  small  num- 
ber, and  those  chiefly  the  great  barons.  William's  sub- 
jects were,  on  the  one  side,  a  conquered  people;  on  the 
other,  an  invading  and,  in  great  part,  a  mercenary  army, 
altogether  dependent  on  the  leader  whom  they  had  followed 
both  for  honour  and  gain;  circumstances  little  auspicious  to 
a  free  government,  and  a  popular  parliament.  We  would 
desire  any  one  who  reads  the  history  of  those  times  with 
the  least  impartiality,  to  point  out,  if  he  can,  on  what  oc- 
casions, whether  small  or  momentous,  the  commons  exer- 
cised any  influence,  or  even  raised  their  voice  in  the  par- 
liaments. The  soccage  tenants  were  not  considered  as 
holding  by  an  honorable  tenure;  the  burghers,  who  were 
artificers  and  merchants,  were  perhaps  still  less  regarded. 
The  only  proper  constituent  members  of  the  parliament 
were  the  military  tenants,  that  is,  the  tenants  in  capite  of 
knight's  fees,  of  whom  the  whole  number,  for  some  time 
after  the  Conquest,  might  be  about  seven  hundred,  and 
who,  together  with  the  bishops  and  abbots,  sat  in  one  body. 
The  introduction  of  the  representatives  of  the  commons 
into  the  parliament  took  place  some  ages  after  this  period. 
It  was  a  measure  prompted,  as  well  by  the  pecuniary  ne- 
cessities of  the  monarch,  as  by  the  increasing  importance 
of  the  commons;  and  this  representation  had  then  become 
as  natural,  and  indeed  unavoidable,  as  in  earlier  times  it 
would   have    been   preposterous,  and    uncongenial    to  the 


Lect.  X.]  OP    THE    FEUDAL    LAW.  5S7 

strict  feudal  spirit.  In  fact,  it  is  apparent  that  only  the 
great  landholders  were  originally  members  of  the  na- 
tional council;  and  as  the  sub-tenants  were  the  pares  in 
their  lord's  courts,  so  the  lords  themselves  were  the  pares 
in  the  king's  courts  and  council;  and  to  have  introduced 
the  lower  vassals  of  any  sort  into  the  latter,  would  have 
been  as  extraordinary  a  departure  from  feudal  subordina- 
tion, as  that  one  lord  should  have  been  vassal  to  another, 
and  confounded  himself  with  the  peasants  and  artificers 
who  sat  in  the  petty  manorial  assemblies. 

The  present  constitution  of  the  High  Court  of  Parliament, 
as  also  its  legislative  powers,  have,  therefore,  been  the 
growth  of  time  and  circumstances.  Originally  an  aristo- 
cratic assembly,  seldom  convened  but  to  settle  some  dis- 
pute with  the  sovereign,  who  was  himself  little  more  than 
a  great  baron;  it  has  taken  its  present  shape  and  order 
from  the  various  mutations  in  the  power  and  wealth  of  the 
respective  classes  of  the  state.  Yet  it  may  be  admitted  to 
have  been  all  along  composed  of  those  whose  liberties  and 
property  were  actually  concerned;  in  early  times,  of  the 
barons,  who  engrossed  all  that  then  existed  of  both;  in 
later  days,  of  those  who  have  gradually  come  to  have  a 
share  in  these,  and  finally  to  possess  them  in  an  equal  de- 
gree. To  heap  excessive  obloquy,  therefore,  on  the  unfor- 
tunate Stuarts,  who  deemed  themselves  to  be  exercising 
only  their  long  established  and  unquestionable  prerogatives, 
and  who  thought  they  were  resisting  innovations,  when 
they  opposed  the  new  born  spirit  of  the  times,  betrays 
some  share  either  of  injustice  or  of  ignorance.  They  had 
the  personal  misfortune  to  reign  in  times  when  the  unfit- 
ness of  the  ancient  system  began  to  display  itself,  and 
when  men's  minds  received  eagerly  the  principles  of  free 
and  limited  government;  and  not  having  the  policy,  or, 
we  may  allow,  the  capacity  to  understand  and  yield  to  the 


5SS  OF    THE    FEUDAL    LAW.  [Lent.  A. 

growing  improvement,  fell,  as  has  not  seldom  happened  in 
revolutions,  the  victims  of  false  but  honest  prejudices. 

.  .  Qf  }  M  The  severity  of  the  feudal  system  in 
dern  English  Ten-  England  had  been  considerably  mitiga- 
ures*  ted  even  prior  to  the  statute  12  Charles 

II.  to  which  I  have  several  times  alluded.     The  age  of 
chivalry  and  the  crusades  had  gone  by,  and  the  romance 
of  military  renown  no  longer  retained  its  former  attractions. 
The  people,  becoming  more  settled  in  their  habits,  prefer- 
red the  peaceful  occupations  of  agriculture  and  commerce; 
and  not  only  acquired  thereby  large  additions  to  their  phy- 
sical comfort,  but  greatly  changed  their  intellectual  condi- 
tion.      This   change   in  habits    produced  a   correspondent 
alteration  in  their  feelings  and  manners,  and  seemed  to  de- 
mand a  like  change  in  their  laws  and  institutions.     This 
was  effected   in   a   considerable  degree    by  the   statute  of 
Charles  II.  which  abolished  the  more  obnoxious  tenures, 
and  most  of  the  feudal  incidents,  which  had  rendered  the 
system  so  justly  odious.      The  student,  nevertheless,  must 
not  suppose  that  the  scheme  of  feudal  holding  was  abolish- 
ed; or  even,  if  the  statute  had  so  expressly  ordained   it, 
that  the  numerous  feudal  principles  incorporated  with  the 
general  jurisprudence  of  the  country,  through  a  series  of 
nearly  six  centuries,  could  have  been  thereby  severed  from 
the  existing  laws  and   institutions.      Neither  of  these  ob- 
jects, however,  was   contemplated   by  that  statute.     Some 
feudal   tenures,  and  many  of  their  incidents,  still  remain; 
and  to  these  we  are  to  add  nearly  the  whole  of  those  prin- 
ciples to  which  the  feudal  laws  and  institutions  had  given 
rise,  and  which  at  this  day  form  so  large  a  portion  of  that 
extensive  branch  of  legal  learning  which  concerns  landed 
property.      These  considerations    should   strongly   weigh 
with  students,  to  urge  them  to  a  diligent  examination  of 
the  system  which  we  have  partly  considered. 


Lect.  X.]  OF    THE    FEUDAL    LAW.  589 

The  progress  of  liberal  principles  during  the  time  of  the 
civil  war  and  the  commonwealth,  prepared  the  publick  mind 
for  the  entire  removal  of  the  onerous  incidents  of  the  mili- 
tary feudal  tenures.  These  were  consequently  abolished  at 
the  Restoration,  by  the  above  named  statute  of  Charles, 
which  enacted  that  the  court  of  wards  and  liveries,  and  all 
wardships,  liveries,  primer-seisins  and  ousterlemains,  va- 
lues and  forfeitures  of  marriage,  by  reason  of  any  tenure  of 
the  king  or  others,  be  wholly  taken  away;  and  that  all  fines 
for  alienations,  tenures  by  homage,  knight's  service  and 
escuage,  and  also  aids  for  marrying  the  daughter,  or  knight- 
ing the  son,  and  all  tenures  of  the  king  in  capite,  be  like- 
wise taken  away:  that  all  sorts  of  tenures  held  of  the  king 
or  others,  be  turned  into  free  and  common  soccage,  save 
only  tenures  in  frankalmoigne,  copyholds,  and  the  honorary 
services  of  grand  serjeantry;  and  that  all  tenures  which 
should  be  created  by  the  king,  his  heirs  or  successors  in 
future,  should  be  in  free  and  common  soccage. 

The  following  are  the  tenures  known  to  the  jurispru- 
dence of  England  since  the  passage  of  this  statute.  1. 
Free  and  common  soccage.  2.  Petit  serjeantry.  3.  Ho- 
norary services  of  grand  serjeantry.  4.  Burgage  tenure. 
5.  Ancient  demesne.  6.  Gavelkind.  7.  Copyholds,  of 
two  species.  8.  Frankalmoigne.  9.  Tenure  by  divine 
service.  They  are  divided  into  lay  and  spiritual;  free 
and  base.  All  the  lay  tenures  are  either  by  free  and  cer- 
tain services,  embracing  common  soccage,  grand  and  petit 
serjeantry,  burgage,  ancient  demesne  and  gavelkind;  or  by 
base  services,  as  by  copy  of  court  roll,  which  is  a  holding 
either  *'at  the  will  of  the  lord,'  or  'according  to  the  custom 
of  manor.'  Certainty  of  services  is  essential,  and  is  the 
great  criterion  which  distinguishes  all  soccage  tenures.  In 
all  these  cases  the  services  are  certain;  but  in  copyholds 
they  are  said  not  to  be  free  or  honorable;  whereas  in  all 
the  other  cases  the  services  are  free  as  well  as  certain. 


590  OF    THE    FEUDAL    LAW.  [Lect.  X. 

The  spiritual  tenures  are  also  of  two  kinds,  viz.  by 
frankalmoigne,  and  divine  service.  Both  are  free  or  ho- 
norable; but  the  former  is  certain,  the  latter  uncertain  in 
its  services.  Frankalmoigne  consists  in  the  duty  of  the 
tenants,  as,  for  example,  any  religious  corporation,  to  per- 
form various  pious  exercises,  as  prayers,  masses  &c.  for  the 
souls  of  the  grantor  of  the  land  and  his  heirs.  This  was  the 
tenure  by  which  nearly  all  the  monastic  institutions,  and 
other  religious  corporations,  held  their  lands.  To  this 
tenure  no  fealty  was  incident;  indeed  this  could  not  be 
expected,  as  it  is  not  a  feudal  tenure,  properly  so  called, 
and  its  exalted  nature  would  also  entitle  it  to  be  excepted 
from  the  obligation  of  fealty.  Tenure  by  divine  service 
required  some  special  or  certain  spiritual  service;  as  to  say 
five  masses  annually;  to  distribute  twenty  pounds  per  an- 
num in  alms,  &c.  It  is  said  that  frankalmoigne  is  an  an- 
cient Saxon  tenure;  and,  even  to  the  present  day,  the  per- 
son of  whom  the  lands  are  held,  cannot  enforce  the  per- 
formance of  the  tenant's  duties  by  any  of  the  modes  known 
to  the  feudal  law.  There  is  no  other  remedy  than  by 
complaint  to  the  Ordinary  to  have  it  corrected;  distress, 
forfeiture  &c.  being  wholly  inapplicable  to  this  tenure. 
With  this  exception,  all  the  tenures  are  evidently  feudal, 
and  are  derived  from  the  same  source  as   knight's  service. 

I  have  had  occasion  to  allude  to  the  fact,  that  numerous 
feudal  principles  remain  in  full  operation  in  England, 
though  the  causes  in  which  they  originated  have  long 
since  ceased  to  exist.  It  would  be  of  little  use  to  present 
to  the  student  a  digest  of  these  principles,  as  many  of  them 
would  perhaps  be  wholly  unintelligible  to  him  at  this  point 
of  his  studies.  It  is  sufficient  to  assure  him  that  most  of  the 
rules  which  regulate  the  descent  of  lands,  and  the  limitation 
and  conveyance  of  such  property,  by  deed  or  otherwise, 
and  many  others,  are  either  wholly  of  feudal  origin,  or  are 
the  means  contrived  to  get  rid  of  the  strict  application  of 


Lect.  X.]  OF    THE    FEUDAL    LAW.  591 

feudal  principles.  This  will  be  made  sufficiently  obvious 
when  we  come,  in  the  Second  Title  of  these  Outlines,  to 
analyze  the  learning  of  the  Real  Law.* 

(9.)  Influence  of  We  arc>  lastly>  to  make  a  few  remarks 
feudal  law  on  Ame-  on  the  utility  of  feudal  learning  to  the 
rican  Jurisprudence.  American  jurisprudent,  and  the  influence 
of  feudalism  on  the  system  of  law  generally  known  and 
practised  in  these  states. 

Any  one  who  has  attentively  studied  the  history  of 
English  jurisprudence,  particularly  that  portion  of  it  which 
relates  to  landed  estates,  cannot  have  failed  to  remark,  as 
we  have  just  said,  how  much  it  has  been  fashioned  either 
by  the  feudalism  which  was  once  so  prevalent,  or  by  the 
struggles  of  the  courts,  and  occasionally  of  the  parliaments, 
to  modify  its  rigours  and  stubborn  technicalities.  The 
reciprocal  relation  of  lord  and  tenant;  the  tenacity  of  the 
former  in  maintaining  the  fruits  of  tenure,  and  enforcing 
every  feudal  obligation;  and  the  artifices  of  the  latter  in 
endeavouring  to  soften  or  elude  them;  gave  rise  to  a  nu- 
merous train  of  legal  doctrines  which  either  remain  to  the 
present  day  in  their  integrity,  or,  although  modified,  great- 
ly affect  the  general  system,  and  can  never  perhaps  be  en- 
tirely effaced  from  it.  Feudality,  indeed,  lies  at  the  very 
foundation  of  the  municipal  or  common  law;  and  whatever 
may  be  done  by  positive  enactments,  or  even  by  judicial 
legislation,  to  remodel  the  system,  and  expunge  its  feudal 
lineaments,  its  heterogeneous  origin,  as  well  as  its  feudal 
affinities  and  alliances,  will  still  continue  to  manifest  them- 
selves. In  this  country,  the  common  law  is  the  basis  of 
our  jurisprudence;  and  this,  too,  with  comparatively  slight 
variations,  or  inconsiderable  modifications  of  the  originaL 

*  I  beg  leave  to  refer  the  student  to  Hoffman's  Course  of  Legal  Study, 
19,  Note  1,  where  some  of  these  feudal  principles  arc  mentioned,  and  the 
utility  of  feudal  learning  is  briefly  vindicated. 


592  OF    THE    FEUDAL    LAW.  [Lcct.  X. 

If  the  laws  and  customs  of  most  of  the  states  have  abolish- 
ed many  of  the  more  obvious  principles  and  rules  which 
are  of  feudal   parentage,  those  which  remain  are  still  very- 
numerous;  and  nothing  less  than  a  laconic  enactment,  which 
shall  annul  the  entire  system,  and  supply  its  place  with  a 
new  code,  could  supersede  the  necessity  of  resorting  to  a 
degree  of  feudal  learning,  for  the  due  comprehension  of 
what  of   feudalism    might   remain   in  our  jurisprudence. 
Much  of  the  nomenclature,  the  technicalities  and  the  re- 
finements of  the  common  law,  is  confessedly  of  feudal  ori- 
gin;  and   in  very  many  instances,  which  could   be  easily 
mentioned,  the   courts   of   this   country,  in   common  with 
those  of  England,  illustrate  their  reasonings  by  continual 
reference  to  the  doctrines  of  feudal  times,  notwithstanding 
that  the  causes  which  created  them  are  no  longer  in  practi- 
cal operation  in  England,  and  never  were  so  in  this  coun- 
try.    These  doctrines,  in  fact,  have  become  rules  of  pro- 
perty;  they  give   rise   to   others;    and  occasionally   suffer 
modification  themselves;  all  which  shows  the  necessity  of 
an  acquaintance  with  the  fount  whence  they  sprung,  and 
with  the  particular  reasons  in  which  they  respectively  ori- 
ginated.    The  Assurances  of  property  in  the  United  States, 
and   their  various   limitations,  are  essentially  the  same  as 
in   England,  and  dependent,  as  they  are   there,  on  feudal 
principles.      So,  also,  the  feudal  Actions  for  the  recovery 
of  lands,  are,  to  say  the  least,  as  much  used  in  this  country 
as  in  that  from  which  we  sprung.     Though  our  canons  of 
Descent  have  been  considerably  changed,  there  are  still 
visible  in  them  some  traces  of  their  feudal  origin;  and  even 
were  this  not  the  case,  there  would  be  a  great  necessity  of 
thoroughly  comprehending  the  rules  of  English  descent,  as 
several   important   branches  of  the  common  law  are   inti- 
mately connected  with  thern;  so  that  the  utility  of  feudal 
learning,  as  far  as  the  law  of  inheritances   is  concerned, 
would  be  still  unquestionable.      The  larger  part  also,  if  not 


Lect.  X.]  OF   THE    FEUDAL   LAW.  593 

the  whole,  of  that  extraordinary  system  of  law  relating  to 
Remainders,  or,  in  other  words,  that  law  which  treats  nf 
such  interests  in   lands  as  are  limited  to  arise  after  the  ex- 
piration of  some  preceding  estate,  is  of  feudal  origin,  and 
is  as  much  the  law  of  this  country  as  of  England.      And 
though  such  limitations  are  not  quite  as  usual,  and  are  by 
no  means  as  complicated  with  us,   yet  they  are  daily  be- 
coming more  intricate,  and  in  time  will  be  equally  com- 
mon, since  great  individual  wealth,  which  will  soon  appear 
among  us,  cannot  fail  to  originate  the  same  voluminous  fa- 
mily   and  other  settlements,   and    nearly  all  that  compli- 
cated machinery,  which  the  pride  of  aristocracy,  or  the  te- 
nacity of  avarice,  deemed  requisite  in  the  mother  country. 
The  law  of  Tenures,  also,  is  nearly  as  important  to  be  un- 
derstood by  the  American  as  the  British  lawyer;  for  though 
in  both  countries  the  feudal  tie  is  nearly  nominal,  the  same 
feudal  principles  affect  the  law  of  landed  estates  in  each, 
and  are  nearly  as  operative  at  the  present  day,  as  they  were 
in  the  height  of  feudalism  in  England.      We  know,  for  ex- 
ample, that  the  fictions  and  presumptions  of  law  are  attend- 
ed by  precisely  the  same  consequences,  and  are  just  as  ope- 
rative, as  if  the  matters  assumed  in  them  were  realities. 
The  same  remark  applies  to  certain  legal  theories  of  the 
feudal  times;  as,  for  example,  that  which  annexes  tenure  as 
an  almost  essential  ingredient  in  the  idea  of  landed  proper- 
ty.     In  some  of  the  states  of  the  Union,  the  legal   notion 
of  tenure  still  obtains;   many  of  our  holdings  are  in  free 
and  common  soccage;  and  if  by  the  theory  of  English  law 
all  the  lands  of  that  country  are  of  the  gift  or  grant  of  the 
crown,  the  same  idea  prevails  here;  for  in  perhaps  most  of 
the  states,  every  proprietor  is  considered  as  holding  either 
mediately  or  immediately  of  the  state  in  which  the  lands 
lie.* 

*  3  Johnson's  New  York  Reports. 
75 


594  OP   THE    FEUDAL    LAW.  [Lect.  X. 

By  the  charter  of  Maryland  the  Lord  Baron  of  Balti- 
more and  his  heirs  were  authorized  to  create  manors,  with 
courts-baron,  and   all    things   appertaining  to   them,  with 
views  of  frank-pledge  &c*     The  Province  itself  was  a 
great  fief  or  hunour,  held  of  the  crown  by  the  tenure  of 
free  and  common  soccage,  and  the  power  of  sub-infuedation 
was    expressly  conferred,   maugre    the    statutes   of    Quia 
emptores  terrarum,    and    De  prerogativd  regis.      The 
State,  after  the  Revolution  was  consummated,  succeeded 
to  all  the  rights  of  the  lord  proprietor;  but  there  was  nothing 
in  that  revolution  which   per  se  abolished  tenure,  and  re- 
lieved our    citizens   from    the   obligations   of    fealty,   and 
whatever  feudal  services  had   been  reserved:  nor  could  the 
abolition  of  the  Quit-Rents  due  to  the  heirs  of  the  lord  pro- 
prietor, necessarily  have  that  effect.!     I  am  not  aware  of 
any  legislative  act  of  this  state  which  has  abolished  tenure, 
and  converted  our  holdings  into  pure  allodium.      The  le- 
gal obligation  of  fealty,   therefore,  may  possibly  remain, 
though  it  is  certainly  dormant,  and  not  probable  to  be  re- 
vived.    In  the  state  of  Connecticut,  however,  these  doubts, 
as  well  as  many  others  in  regard  to  feudal  doctrines,  were 
intended  to  be  effectually  removed  by  express  legislation, 
but,  in    regard  to  tenures,   perhaps  not    with  entire    suc- 
cess.    The  charter  of  that  colony  created  a  tenure  of  the 
crown,  and  the  General  Assembly,  in  1692,  ordained  that 
their   grants  of  lands  should  be  held  in  soccage.      By  the 
act  of  1793,  it  was  enacted  that  every  proprietor  of  lands 
in  fee  simple  should  hold  the  same  absolutely,  and  in  pure 
allodium.  %   But  whether  that  act  designed  only  to  declare 
that  all  lands  holden  of  the  king  by  soccage  tenure,  should 
be  vested  in  their  respective  proprietors  in  absolute  domi- 
nion, is    not    very   clear.      Such  an   enactment,   indeed, 

*  Charter  of  Maryland,  sec.  v.  xviii.  xix. 

t  Act  of  Assembly  1780,  chap,  xxiv 

t  Laws  of  Connecticut,  title  xcvii.  chap.  i.  u. 


Lect.  X.)  OP   THE    FEUDAL    LAW.  595 

would  have  been  perhaps  unnecessary.     Nor  does  the  act 
seem  to  embrace  estates  tail,  for  life,  or  for  years,  even  if 
construed    to   extend  to  holdings    from    individuals.      If, 
therefore,  tenures  in  tail,  for  life,  or  years  ever  existed  there, 
it  does  not  appear  from  any  statute  of  that  state  within  my 
knowledge,  that  such  tenures  are  abolished.      In  the  state 
of  New  York,  all  lands  granted  since  the  Revolution  are 
holden  in  pure  allodium  only;   but  such  as  were  granted 
prior  to  that  period,  are  held   by  the  tenure  of  free  and 
common  soccage.  *     And  the   act  just  cited  expressly  re- 
pudiates the  idea  that  these  soccage  lands  are  to  be  held 
exempted  from  the  rents,  services  and  fealty  reserved  to 
the   grantors.      The  quit-rents  due  to  the  king  were  not 
abolished,  but  transferred  to  the  state;  they   have,   how- 
ever, been  in  various  ways  nearly  extinguished.      It  would 
also  appear  that  fealty,  though  expressly  reserved  by  the 
statute  of  1787,  has  been  very  recently  held  to  be  due  in 
theory  only.t     It  would  be  a  little  difficult,  perhaps,  to  re- 
lieve such  a  decision  from  the  imputation  of  judicial  legisla- 
tion, however  absurd  the  reservation  of  the  act  of  1787  may 
have  been.      In  the  state  of  Virginia,  the  common  law,  and 
all  general  statutes  of  England  prior  to  the  fourth  year  of 
James  I.  are  declared  the  rule  of  decision  in  that  state  until 
repealed  or  modified;  and  all  quit-rents  &c.  due  to  the  king, 
are  vested  in  the  Common  wealth.  $    By  the  act  of  1777,  ch. 
2   sec.  9,  it  is  provided,  that  in  order  that  lands  may  not  be 
o-ranted  on,   or    be   subjected  to   any  feudal   tenure,  quit- 
rents  shall   be   abolished.      Notwithstanding  this  act,  and 
that  of  1785,  ch.  60,  which  abolished  the  right  of  primo- 
geniture, and  all  preference  of  males  over  females  in  the 
inheritance  of  estates,  Mr  Tucker,  the  learned  editor  of 
the  'Commentaries,'  remarks  that  subsequent  legislatures 

*  Act  of  New  York,  1787. 

f  2  Cowen's  N  York  Reports,  652.     Cornell  v.  Lamb. 

t  Act  of  Virginia,  May  1776,  chap.  V.  sec.  6,  7. 


596  OF   THE    FEUDAL   LAW.  [Lect.  X. 

have  manifested  a  strong  disposition  to  revive  some  of  the 
maxims  of  the  feudal  system.  This,  no  doubt,  has  been 
the  case;  but  independently  of  the  enactments  which  may 
have  resulted  from  the  disposition  just  mentioned,  there 
can  be  as  little  doubt  that  perhaps  many  hundred  feudal 
principles  might  be  enumerated  as  operative  at  all  times  in 
that  state;  and  the  same  remark  applies  to  nearly  all  the 
states  of  the  Union,  as  will  be  abundantly  shown  in  the 
ensuing  volumes. 

We  have  now  finished  our  inquiries  into  the  origin  and 
progress  of  feudalism.  It  has  not  only  left  on  the  muni- 
cipal jurisprudence  of  every  country  in  which  it  existed, 
some  deep  and  visible  impressions,  but  has  imparted  to 
the  great  system  of  European  international  law  some  fea- 
tures which  no  times  nor  circumstances  will  perhaps  ever 
eradicate.  These  will  be  adverted  to  under  the  Seventh 
title  of  these  Outlines,  which  treats  oi  the  'Law  of  Nations.' 


APPENDIX  I. 


SYLLABUS 

OF  THE   CONTENTS    OF   THE  FOREGOING    LECTURES, 
COMPREHENDING    TITLE    THE    FIRST. 

LECTURE  I. 

OF  THE  ORIGIN  AND  NATURE  OF  MAN,  HIS  PHY- 
SICAL AND  MORAL  CONSTITUTION. 

(1)  Of  the  propriety  of  treating  of  Man's  na- 
ture, prior  to  the  consideration  of  the  science  which 
unfolds  his  rights  and  duties.  (2)  Idea  of  some 
philosophers  as  to  the  triple  nature  of  the  soul,  &,c. 
(3)  Man  not  merely  a  gregarious,  but  a  social  ani- 
mal; and  herein  of  the  universality  of  Natural  Ju- 
risprudence. (4)  Man  endued  with  reason,  and 
progressive  in  knowledge.  (5)  Man  a  religious 
animal.  (6)  Man  a  free  agent.  (7)  Man's  actions 
imputable  or  not.  (8)  Society,  Government,  Reli- 
gion and  Knowledge  congenial  to  man,  and  essential 
to  his  happiness.  (9)  What  is  meant  by  the  natu- 
ral equality  of  man;  and  of  the  nature  of  moral  ob- 
ligation. 


598  APPENDIX    I. 

LECTURE  II. 

OF  MAN  IN  A  STATE  OF  NATURE. 

(1)  Why  the  state  of  nature  is  treated  of.  (2) 
Its  various  meanings.  (3)  The  state  of  nature 
merely  theoretical  and  metaphysical.  (4)  Its  me- 
taphysical sense  is  its  only  useful  one.  ( 5 )  Whether 
the  state  of  nature  be  one  of  war  or  of  peace.  (6) 
Of  the  inconveniencies  and  mischiefs  of  the  state  of 
nature. 

LECTURE  III. 
OF  THE  RIGHTS  OF  NATURE. 

(1)  Various  meanings  of  the  word  Right.  (2) 
Division  of  rights.  (3)  In  what  the  rights  of  na- 
ture consist.  (4)  Liberty  is  subject  by  natural  law 
to  three  species  of  restriction. 

LECTURE  IV. 

OF   THE  ORIGIN  OF   PRIMARY  SOCIETY,  AND   OF 
CIVIL  GOVERNMENT. 

(1)  Of  Primary  society,  as  distinguished  from 
political  or  civil  society.  (2)  Of  the  motives  which 
induced  men  to  establish  civil  society  and  govern- 
ment; and  herein,  First,  of  the  theory  which  as- 
cribes the  origin  of  government  to  a  Divine  com- 
mand; Secondly,  of  the  theory  which  supposes  man 
originally  a  solitary  animal,  and  that  society  and  go- 
vernment sprung  from  various  causes,  such  as 

1.  The  social  principle. 

2.  Sense  of  impotency. 

3.  Natural  hostility. 


SYLLABUS.  ,599 

4.  The  urgency  of  our  wants. 

5.  Sexual  passion. 

6.  The  love  of  knowledge. 

7.  Patriarchal  government. 

(3)  History,  and  a  knowledge  of  man's  moral 
and  physical  nature,  are  more  to  be  relied  on  than 
political  systems. 

LECTURE  V. 

OF  THE  RIGHT  OF  CIVIL  GOVERNMENT. 

(1)  The  right  of  civil  government  is  either  ori- 
ginal or  subsequent.  (2)  The  original  right  sup- 
posed to  arise  1st,  from  Divine  command;  2dly,  from 
the  Consent  of  the  governed.  (3)  Of  the  subse- 
quent right  of  civil  government;  and  1st,  that  this, 
as  well  as  the  original  right,  is  founded  on  consent, 
2dly,  of  the  opinions  that  this  subsequent  right  rests 
either  on 

1.  Possession. 

2.  Inheritance. 

3.  Prescription. 

4.  Ancient  consent  of  the  governed. 

5.  Virtues  of  political  rulers. 

6.  Expediency. 

LECTURE  VI. 

OF  THE  EFFECTS  OF  SOCIETY  AND  GOVERNMENT 
ON  THE  NATURAL  RIGHTS  OF  MAN. 

( 1 )  Jurisdiction  and  Law  the  necessary  result  of 
the  change  from  a  state  of  nature  to  that  of  civil 
Union.     (2)  Men  are  not  reduced  to  a  state  of  na- 


GOO  APPENDIX    I. 

ture  by  a  dissolution  of  the  government.  (3)  Of 
the  effects  of  civil  union  on  the  right  of  personal 
security.  (4)  Of  the  effects  of  civil  union  on  the 
right  to  the  fruits  of  mental  and  bodily  exertion. 

(5)  Effects  of  civil  union  on  the  right  to  reputation. 

(6)  Effects  of  civil  union  on  the  right  to  personal 
liberty;  and  herein, 

1.  Of  Natural  liberty. 

2.  Social  liberty. 

3.  Civil  liberty. 

4.  Political  liberty. 

LECTURE  VII. 
OF  LAW,  AND  ITS  GENERAL  PROPERTIES. 

(1)  Introductory  remarks.  (2)  Of  Law  in  the 
abstract,  and  in  the  concrete.  (3)  Various  defini- 
tions of  law  as  a  genus  and  species,  by  Demos- 
thenes, Aristotle,  Cicero,  Justinian,  Bracton,  Finch, 
Grotius,  Puffendorf,  Saundersoh,  Daws,  Hooker, 
Hobbes,  Montesquieu,  Burlamaqui,  Barbeyrac, 
Dagge  and  Blackstone.  (4)  Observations  on  the 
foregoing  definitions.  (5)  Proposed  definitions. 
(6)  Properties  of  law,  how  divided.  (7)  Of  the 
internal  properties  of  law;  and  herein, 

1.  Why  law  is  a  rule  of  action. 

2.  Of  promulgation. 

3.  Of  retrospective  and  ex  post  facto 

laws. 

4.  Of  sanctions. 

5.  Of  obligation. 

6.  Of  permissions. 


SYLLABUS.  601 

(8)  Of  the  external  properties  of  law. 

1 .  These  embrace  the  philosophy  of  le- 

gislation. 

2.  Proposed  outline  of  a  code. 

3.  Rules  of  legislation. 

LECTURE  VIII. 

OF  THE  LAWS  OF  NATURE  APPLIED  TO  MAN  IN- 
DIVIDUALLY, WHETHER  IN  A  STATE  OF  NA- 
TURE, OR  OF  PRIMARY  SOCIETY  AND  CIVIL 
GOVERNMENT. 

(1)  Introductory  remarks.  (2)  Definitions  of 
the  Law  of  Nature.  (3)  Whether  the  Law  of 
Nature  be  common  to  man  and  brute,  and  how  far 
it  is  common  to  God  and  man.  (4)  Difference  be- 
tween the  Law  of  Nature  and  Divine  Positive  Law, 
and  herein  of  the  various  theories  advanced  as  to 
the  mode  in  which  man  became  acquainted  with  the 
laws  of  nature. 

1 .  From  the  Praecepta  Noachidarum. 

2.  From  Inspiration,  either  of  superin- 

tendency  or  of  suggestion. 

3.  From  Human  Reason  alone. 

4.  From  Sentiment  alone. 

5.  From  Reason  and  Sentiment  united. 

6.  From  the  Laws  of  Man  alone. 

(5)  Whether  the  laws  of  nature  may  be  derived 
from  the  consent  of  mankind.  (6)  A  further  ex- 
amination of  this  doctrine;  and  whether  the  law  of 
nature  and  of  nations  can  extend  to  actions  morally 
indifferent.     (7)    Whether  Hobbes's  doctrine,  that 

1G 


602  APPENDIX    I. 

nature  did  not  institute  society  but  discord  among 
men,  justifies  the  conclusion  of  his  critics,  that  so- 
ciety is  against  the  design  of  nature.  (8)  Opinion 
of  Hobbes,  that  the  dictates  of  reason  can  be  re- 
spected as  laws  only  as  far  as  God  or  man  has  en- 
acted them  as  such.  (9)  Of  the  Primary  and  Se- 
condary laws  of  nature.  (10)  The  laws  of  nature 
relate,  1.  to  man's  duty  to  himself,  and  2.  to  his 
duty  to  his  fellow  creatures;  and  all  these  duties 
are  referred  either  to  th°;  Absolute  or  Hypothetical 
laws  of  nature;    and  herein, 

First.   Of  man's  duty  to  himself )  which  consists 
principally  in 

1.  The  cultivation  of  his  moral  and  re- 

ligious nature. 

2.  The  improvement  of  his  intellectual 

faculties,  by  the  acquisition  of  all 
useful  knowledge. 

3.  The  preservation  of  the  health  of  his 

body  and  mind. 

4.  The  honest  acquisition  of  property. 

5.  The  pursuit  of  salutary  pleasures. 
Secondly.  Man's  duties  to  his  fellow  creatures  are 

1.  Such  as  are  Absolute,  and  oblige  all 

men,  in  all  countries,  and  inde- 
pendently of  all  human  laws  and 
institutions. 

2.  Such   as   are   Hypothetical,  and 

arise  after  the  establishment  of  so- 
ciety and  laws;  but  which  are  ne- 
vertheless founded  on  the  condition 


SYLLABUS.  603 

of  mankind  considered  in  general, 
and  do  not  flow  from  the  mere  po- 
sitive law. 

LECTURE  IX. 

OF  POLITICAL,  AS  DISTINGUISHED  FROM  CIVIL 
LAW;  AND  OF  THE  VARIOUS  FORMS  OF  CIVIL 
GOVERNMENT. 

( 1 )  Of  political  law,  what  it  is,  and  how  distin- 
guished from  civil  law.  Political  state,  how  differ- 
ent from  civil  state.  (2)  Of  the  exercise  of  go- 
vernmental power,  relative  or  not  to  the  constitu- 
tional and  fundamental  laws  of  a  state.  Of  the  na- 
ture and  objects  of  a  constitution,  and  how  affected 
by  the  physical  condition  of  the  governed:  And  of 
the  necessity  of  laws  varying  with  the  great  and  ra- 
dical changes  in  the  genius  of  a  people.  (3)  Of 
the  various  Forms  of  government,  and 

First.  Form  of  government  defined,  and  how  it 

differs  from  a  Constitution. 
Secondly.  Of  the  influence  of  government  on  in- 
dividual and  national  character. 
Thirdly.  Various  divisions  of  the  Forms  of  govern- 
ment, and  herein  of  the  divisions  of 

1.  Plato. 

2.  Socrates. 

3.  Aristotle. 

4.  Polybius. 

5.  Charondas. 

6.  Zaleucus. 


604  APPENDIX    I. 

7.  Cicero;   and  the  opinions  of 
some  of   them  as    to  ideal 
forms  of  government. 
Fourthly.  Of  distinguished    moderns  who    have 
contributed  largely  to  the  improve- 
ment of  political  science,  viz. 

1.  Machiavel. 

2.  Harrington. 

3.  Sidney. 

4.  Montesquieu. 

5.  Milton. 

6.  .Locke. 

7.  Hume. 

8.  Frederick  II.  of  Prussia. 

9.  Confucius. 

10.  Bolingbroke. 

1 1 .  The  authors  of  the  Federalist. 

12.  Bentham. 

13.  The  Emperor  Napoleon: 
With  some  account  of  the  lives,  and  political  wri- 
tings of  each.     (4)   A  further  division  of  civil  go- 
vernments, and  a  proposed  classification  of  all  con- 
ceivable forms,  viz. 

I.  Pure  and  Simple,  viz. 

1.  Theocracy. 

2.  Patriarchy. 

3.  Simple  Monarchy. 

4.  Simple  Aristocracy. 

5.  Simple  Democracy. 

II.  Pure  and  Mixed,  viz. 

1.  Monarchy  combined  with  aristocracv. 


SYLLABUS.  605 

2.  Monarchy  combined  with  democracy. 

3.  Aristocracy  combined   with    demo- 

cracy. 

4.  Monarchy,  aristocracy  and  democra- 

cy combined. 

5.  Quasi  mixed  republic,  or  quasi  mix- 

ed democracy,  in  which  the  various 
Principles  rather  than  the  govern- 
ments are  combined. 

III.  Corrupt  and  Simple,  viz. 

1.  Despotism  or  tyranny. 

2.  Oligarchy. 

3.  Ochlocracy. 

IV.  Corrupt  and  Mixed. 

$3?*  Either  of  the  foregoing  governments  may  be 

1.  Single. 

2.  Confederate. 

These  divisions  and  combinations  explained  and 
exemplified. 

LECTURE  X. 

OF  THE  FEUDAL  LAW. 

Part  the  First. 

#&>  Feudalism  on  the  Continent. 
Division  I.     Occupation   of  the   conquered   lands 
by  the  Barbarians,  and  their  allot- 
ment among  the  Victors. 

( 1 )  Of  Allodial  property. 

(2)  Of  Beneficia  and  Feuda. 
Division  II.     Whether  Beneficia  were  ever  grant- 
able  during  pleasure  only;  and  how 
they  became  hereditary. 


606 


APPENDIX   I. 


Munera,  Beneficia,  Feuda,  how  they 
differ. 

Benefieia  and   Feuda  divided   into 
Proper  and  Improper. 
Nine  species  of  improper  benefices 
or  feuds  explained. 
Division  III.     How  Counts  and  Dukes  made  their 

offices  hereditary. 

Division  IV.     Causes  of  the  prevalence  of  feudal 

ovei  allodial  property,  and  of  the 

rise  of  Tenures. 

Theories  as  to  the  origin  of  feuds. 

Principal  writers  who  have  treated 

of  feuds. 
Seven  different  species  of  feuds  ex- 
plained. 
Division  V.     Qualities  and  incidents  of  feuds. 
First,  their  general  qualities,  viz. 
Homage. 
Fealty. 
Investiture. 
Secondly,  Their  particular  incidents  or  fruits, 
viz. 
Reliefs. 
Primer  Seisin. 
Fine  for  alienation. 
Attornment. 
Escheat. 
Aids. 
Wardship. 
Marriage. 


SYLLABUS.  607 

Division  VI.  Causes  of  the  rise  of  the  Landed 
Aristocracy,  and  of  the  orders 
and  ranks  of  subjects.  Privileges 
exercised  by  lords  within  their 
fiefs,  viz: 

Coinage  of  Money. 
Private  War. 
Taxation. 
Legislation. 
Judicial  Jurisdiction. 
Origin  of  Surnames  and  Armorial 

Bearings. 
The  great  variety  of  baronial  cus- 
toms and  laws  gave  rise  to  serious 
conflicts  between   the  judicial   deci- 
sions of  these  various  baronies,  &.c. 
$|f»  Note  on  the  doctrine  de  conflictu  le- 
gum. 
Division  VII.     Progression  of  the  feudal  system 
towards  its  modern  form  and  as- 
pect. 

(1)  Of  the  original   extent   and  pro- 

gressive enlargement  of  the  royal 
authority. 

(2)  Of  the  constitution  of  the  national 

councils^  and  the  mutations  of  the 
legislative  power. 

(3)  Of  the  gradual  abolishment  of  ter- 

ritorial jurisdiction;  and  of  the 
substitution  of  royal  judicial  ju- 
risdiction. 


608  APPENDIX    I. 

Under  the  three  foregoing  heads  are  briefly 
considered  the  growth  of  the  Commons;  the  pro- 
gress of  Taxation;  and  the  preservation  of  the  Ro- 
man Law,  as  it  appears  in  France,  Germany  &c. 

Part  the  Second. 

$&  Feudalism  in  England. 
Division  VIII.     Of  the  feudal  system  in  England, 
and   its  influence  on   the  juris- 
prudence of  that  country,  and  of 
the  American  states. 

( 1 )  Of  the  true  aera  of  the  introduction 

of  feuds  into  England. 

( 2 )  Of  the  changes  effected  by  the  Nor- 

man invasion. 

(3)  Brief  examination  into  the  nature 

of  English  feuds. 

(4)  Of  the  custom  of  gavelkind. 

(5)  Of  the  different  ranks  of  subjects. 

Various  other  tenures  introduced 
after  the  Conquest. 

(6)  Of  the  royal  revenues,  and  their 

various  mutations  from  the  time  of 
the  Saxons  to  the  present  day. 

(7)  Of  the  origin  and  progress  of  the 

English  Commons. 

(8)  Of  the  modern  English  tenures. 

(9)  Of  the   influence  of  feudalism  on 

the    jurisprudence  of    England 
and  the  United  States. 


APPENDIX  II. 


AUTHORITIES. 

ICP  The  citation  of  numerous  authorities  in  the  progress  of 
the  work,  has  been  avoided  under  the  belief  that  students 
would  rather  be  confused  than  aided  by  them.  They  are  now 
referred  to  the  following  leading  works  and  authorities,  in  ad- 
dition to  those  already  cited.  These  should  be  carefully  read, 
and,  if  practicable,  in  the  order  in  which  they  are  enumerated. 

LECTURE  I. 

Man's  moral  and  intellectual  character. 

Reid's  Essays  on  the  Powers  of  the  Human  Mind. 
Smith's  Theory  of  Moral  Sentiments.  Aristo- 
tle's Ethicks,  Gillies'  Translation.  Stewart's 
First  Dissertation,  part  1.  &  2.  Good's  Book  of 
Nature,  vol.  2.  Series  III. 

Man's  physical  character. 

Lord  Kaimes'  Sketches  of  the  History  of  Man. 
Smith's  Essay  on  the  variety  in  the  human  form 
and  complexion.  Blumenbach  de  generis  huma- 
ni  varietate.  White  on  the  regular  gradation  in 
man  and  animals.  Lawrence's  Lectures  on  the 
Physiology  of  Man.  Good's  Book  of  Nature,  vol. 
1.  vol.  2.  Series  II.  lectures  7.  8.  9.  10. 


77 


610  APPENDIX    II. 

LECTURE  II. 

The  State  of  Nature. 

Eunomus,  Dialogue  1.  sec.  17.  Plowden's 
Jura  Anglorum,  chap.  i.  Puffendorf,  book  2. 
chap.  ii. 

Hobbes  de  corpore  politico,  chap.  i.  Paine's 
Rights  of  Man. 

LECTURE  III. 

Rights  of  Nature. 

Paley's  Philosophy,  55  to  69.  Burlamaqui's 
Natural  Law,  vol.  1.  part  1.  chap.  vii.  Ruther- 
forth's  Institutes  of  Natural  Law,  vol.  l.chap.  i. 
Puffendorf,  book  2.  chap.  v.  Campbell's  Gro- 
tius,  vol.  1.  168  to  268. 

LECTURE  IV. 

Origin  of  Primary  Society,  and  of  Civil  Govern- 
ment. 

Goguet's  Origin  of  Laws,  vol.  1.     Introduction, 

book  1.  articles  1.  2.     Plowden's  Jura  Anglorum, 

chap.  ii.    Rutherforth's  Institutes,  vol.  2.  chap.  ii. 

Puffendorf,  book  7.  chap.  i. 

LECTURE  V. 

Right  of  Government. 

Paley's  Philosophy,  book  4.  chap.  ii.  Bur- 
lamaqui's  Institutes,  vol.  1.  part  1.  chap.  ix.  Ma- 
cauley's  Rudiments  of  Political  Science,  125  to 
165.  Puffendorf,  book  1.  chap.  iv.  book  7. 
chap.  viii.  Locke  on  Government.  Harring- 
ton's Works,  364.     Sidney  on  Government. 


AUTHORITIES.  611 

LECTURE  VI. 

Natural  Rights,  how  affected  by  Society  and  Law. 
Rutherforth's   Institutes,  vol.  2.  chap.  v.  viii. 
Campbell's  Grotius,  book  2.  chap.  ix. 

LECTURE  VII. 

Definitions  and  General  Properties  of  Laios. 

Burlamaqui's  Institutes,  vol.  1.  part  1.  chap, 
vii.  Rutherforth's  Institutes,  vol.  l.chap.  xviii. 
Puffendorf,  book  l.chap.  vi.  Bentham's  Prin- 
ciples of  Morals  and  Legislation.  Bentham's 
Fragment  on  Government,  Preface.  Ellis's  Sum- 
mary of  Roman  Law,  15.  61.  1  Dagge's  Crimi- 
nal Law,  2.  46.  3  Dagg.  91.  Montesquieu's  Spi- 
rit of  Laws,  books  1.  6.  and  29. 

LECTURE  VIII. 

Laws  of  JYature. 

Hooker's  Ecclesiastical  Polity,  book  1.  Burla- 
maqui's Institutes,  vol.  1.  part  2.  chapters  i.  ii.  iii. 
iv.  v.  Amos's  Fortescue,  chapters  xv.  xvi.  Puf- 
fendorf, book  2.  chap,  iii.  Bentham  on  Go- 
vernment, 109.  St.  Germain's  Doctor  and 
Student,  dialogue  1.  chap.  v.  Ward's  Laws  of 
Nations,  chap.  ii.  Goguet's  Origin  of  Laws, 
book  6. 

LECTURE  IX. 

Political  Law,  and  Forms  of  Government. 

Paley's  Philosophy,  book  vi.  Rutherforth's 
Institutes,  vol.  2.  chapters  iii.  iv.  x.  Aristoti.i:*s 
Politicks,  vol.  2.  Gillies'  translation.     Macauley's 


612  APPENDIX    II. 

Rudiments  of  Political  Science.  Puffendorf, 
book  7.  chap.  v.  Harrington's  Political  Apho- 
risms. Harrington's  Oceana.  Machiavel's 
Prince,  and  his  Discourse  on  the  first  Decade  of 
Livy.  Hume's  Essays,  vol.  1.  part  2.  Essays  xii. 
xiii.  xvi.  Amos's  Fortescue,  chap.  xiv.  Hallam's 
Middle  Ages,  chap.  viii. 

LECTURE  X. 

Feudal  Law. 

Robertson's  Charles  V.  vol.  1.  Introduction. 
Butler's  Horae  Juridical  Subsecivae,  73  to  96. 
Priestley's  Lectures  on  History,  chap.  xlv.  Gib- 
bon's Roman. Empire,  vol.  3.  323.  Gilbert  Steu- 
art's  Historical  Dissertation,  62  to  120.  Ward's 
Law  of  Nations,  vol.  1.  chaps,  xi.  xii.  Millar  on 
Ranks.  York's  Law  of  Forfeiture,  54  to  62.  Mil- 
lar on  the  English  Government,  vol.  1.  103  &c. 
Montesquieu's  Spirit  of  Laws,  books  28.  30.  31. 
Harrington's  Works,  59  to  62.  Blackstone's 
Commentaries,  vol.  2.  chapters  iv.  v.  Sullivan's 
Lectures  on  Feudal  Law.  Turner's  History  of  the 
Saxon  Government.  Dalrymple  on  Feudal  Pro- 
perty. Wright's  Tenures.  Cruise's  Digest  of 
the  Real  Law,  vol.  1.  chapter  i. 


INDEX, 


Page. 
Absolute  rights  and  duties 14, 15 

iEsymetic  government 400 

Adams,  John,  his  opinion  of  Sidney's  Discourses      ....    442 

Adam  and  Eve,  remarks  on  their  situation 84 

Aggregate  fund 583 

Aids 510,  553,  568 

Alien's  duty 580 

Alienation,  how  different  from  subinfeudation     .  .      .   509,  556 

Alieuation,  fine  for 508 

Allodial  property 486,  499,  594 

Alderman,  its  etymology 201 

Ammonia,  no  criterion  of  animality 23 

American  jurisprudence,  how  affected  by  feudal  law        .         .         .       691 

Animals,  grow,  live,  and  feel 14,  15 

Anthropophagi,  their  practice  commented  on         ....        344 

Anglo-Saxons,  their  character 545 

the  Conqueror  introduced  feuds  among  the  .        551 

Ancient  demesne,  tenants  in 560,  563 

Annual  revenues  of  the  crown         ....         ...         576 

Aristotle,  his  views  of  government 399 

his  definitions  of  law 257 

Aristocracy,  landed,  its  rise        ........     521 

Armorial  bearings,  origin  of 523 

Asbestos,  its  nature 22 

Atrabiliary  temperament 64 

Attornment 50S 

Authority,  how  far  to  be  respected  ,.•...  1<> 

Aulic  council 

Authority,  royal,  in  France,  its  history 532 

12 
Bacon,  Lord,  quoted 

Barbaric  government,  Aristotle's  views  of 400 

357 
Barbauld,  Mrs,  quoted  


his  idea  of  useful  knowledge 
his  life  and  writings 


109 

259 

21 

39 

185 


614  INDEX. 

Barbeyrac's  criterion  of  perfect  rights        .... 

his  definition  of  law  ..... 

Beaumont  considers  corals  and  sponges  as  minerals 

Bellum  omnia  in  omnia,  its  object 

Bellarmine,  his  opinion  of  government  jure  divino 

Bentham,  his  life  and  writings         ......         464  &c 

Benevolences,  a  source  of  revenue 568 

Beneficia  ••••.......         487 

whether  ever  granted  at  pleasure  only        ....     488 

proper  and  improper 490 

Biliary  temperament 64 

Bockland 548 

Bolingbrokc,  his  opinion  of  pre-established  harmony  ...       60 

his  errour  in  supposing  the  Jews  made  beasts  accountable  304 

358 
460 
258 
21 
561 


Brarton,  his  definition  of  law 

Byssus,  its  singular  nature 

Burgage  tenure 

Butlerage  on  wines  .  5§q 

Cato,  his  repudiation  of  Marcia  explained 343 

Carneades,  his  philosophy 336   343 

Children,  whether  they  have  a  natural  right  of  succession         .        .     139 

Charondas,  his  laws  and  institutions 406 

Citizen  defined  243 

Civil  union,  its  effects »  .- 

■  on  personal  security 226 

on  the  right  of  property        ....        235 

on  the  right  to  reputation  ....     239 

on  the  right  to  personal  liberty     .         .         .        241 

Civil  liberty,  how  different  from  political  ....      243   247 

Cicero  quoted 10;  45>  338)  405 

his  definition  of  law 257 

his  views  as  to  forms  of  government  .         .         .  409 

the  fate  of  his  treatise  De  Republica 409 

portions  of  his  treatise  lately  discovered     ....        410 

Civil  jurisprudence,  variable 10    11 

Citizens,  ranks  of  ...  KO,    ,  ,, 

•  •         •  •  O- J ,  o«.o 

Civil  or  Roman  law,  conformed  to  on  the  Continent          .        .  .541 

Classification,  its  utilities ,- 

of  all  entities         .         .         .         .         .         ,  17    18 

— of  all  forms  of  government 473 

Climate,  its  effect  on  laws  &c.            ....  369 


INDEX.  615 

Corals,  their  animality  o\ 

ColJins,  his  views  of  free-agency .        .      47 

Cousent  the  only  legitimate  source  of  government  .        .        .         181 

ancient,  not  a  source  of  political  rule  .        .        .        .199 

Constitution  denned 355 

how  different  from  form  of  government         .        .      365.  3  0 

Codification j64 

Code,  a  proposed  outline  of  one 292 

Codes  of  the  French  Empire 469 

Confucius,  his  life  and  maxims 459 

Coinage  of  money 521 

Cortes  of  Spain 544 

Conflict  of  laws,  remarks  on 5J9 

Commendation 497 

Commons,  English,  their  rise 584 

Courts  of  justice,  profits  from,  a  source  of  revenue  .        .        .     576 

Corodies,  formerly  a  source  of  revenue 514 

Corruption  of  blood  . 554 

Copyholds,  their  origin 568 

Cudworth,  his  doctrine  of  immutable  and  eternal  morality        .        .    309 

Customs  of  nations  explained 332 

Customs,  a  source  of  revenue 556,568,570,519 

Cyning,  a  Saxon  title  for  king -00 

Dagge,  remarks  on  his  idea  of  natural  hostility  of  man      .        .        89  &c. 
Descartes  considers  animals  as  machines        .  .        .  37 

his  opinion  of  the  soul SS 

Deodands,  the  law  of,  imputed  no  guilt  to  the  things  forfeited        .        304 

Democracy 390,  392,395,  399,  403,  474,  4S1 

De  conflictu  legum,  remarks  on 
Demesne  lands,  alienation  of 

a  source  of  revenue. 

Definitions,  remarks  on  ... 

of  law 

, remarks  on  various  . 

Disease  cannot  be  predicated  of  mind 
Diversions  of  Purley       .... 
Divorce  under  the  Mosaic  law 
■  various  kinds  of 


.  529 
564,571 

578 

255 
257  &c. 

266 
.       63 

105 
.      149 

150 
.     151 


, among  the  Romans,  Athenians  &c. 

Divine  command,  supposed  to  have  originated  government  .  167,  1S1 

Divine  positive  law,  how  different  from  natural  .        .        .        .311 

Disparagement,  its  various  kinds b~l 

Diets  of  Germany 5ii 


61ft 


INDEX. 


Divine  service,  tenure  by       ... 
Dolman,  his  views  as  to  goverment  jure  divino 
Domesday  Book      ...... 

Droit  d'  Aubaine  explained        . 

Dukes,  how  they  made  their  offices  hereditary 

Elder,  its  meaning 

Emancipation  of  villains  .... 

Estrays 

Escuagre         


.     201 

562 

.     577 

505, 554,  -65 

Escheat ■  .         .         .       510,579 

Establishments  of  St.  Louis 538 

Extraordinary  revenues 579 

Extreme  necessity,  right  of,  explained 81 

Expediency,  doctrine   of,  explained 202 

a  supposed  source  of  political  rule     ....        203 

. Pale) 's  views  of 205 

Excambium 504 

Excise 568  575,581 

502,  557,  590,  594 

490,  499 

493 

.     545 

501 

55S, 5SS 

485  &.C. 

545  &c. 

591 

.     462 

75,  76,  77 

.     690 

378 

508, 555 

457 

.     575 

567 

.     54S 

598 

365,380 

.  383,391,433 

.      184 

21 

.     575 

45 


Fealty     

Feuds,  proper  and  improper 

controversy  as  to  their  origin 

whether  known  to  the  Anglo-Saxons 

. their  qualities  and  incidents 

in  England 


Feudal  law,  history  of,  on  the  Continent       .         .        . 

history  of,  in  England 

,  its  influence  on  American  jurisprudence 

Federalist,  its  character  and  authors  . 

Ferguson  quoted     ........ 

Feudal  principles  remain,  though  their  causes  have  ceased 
Filmer,  Sir  Robert,  his  views  of  jure  divino  government 
Fine  for  alienation     ...         ... 

Frederick  II.  his  life  and  writings 
First  fruits,  a  source  of  revenue 
Fifteenths,  a  source  of  revenue 

Folkland  

Forfeiture  of  lands  for  crimes 

Forms  of  government         ..... 

some  imaginary 


Fortescue,  his  views  of  government  jure  divino 
Fortinella  Antipyretica,  its  singular  nature    . 
Forests,  royal,  a  source  of  revenue 
Free  agency 


INDEX.  617 

Frankalmoignc  503,689,590 

Frigidity,  effect  of  on  the  marriage  contract           ....         150 
Fumage • 682 

Gavelkind,  custom  of 558 

General  fund ,        .  5gg 

Gemara,  purified  by  Maimonides        .        .        .  .        .         .314 

Giants,  never  existed  in  modern  times :ii6 

Gleaning  referred  to  the  right  of  harmless  profit        ....       63 

the  legal  right  to,  denied  in  England       ....  83 

Government,  civil,  motives  for  its  establishment        .        .  .165 

theories  as  to  its  origin      .         .         .  167,181 

de  facto,  how  different  from  government  de  jure      173 

right  of,  original  or  subsequent  .        .         178,190 

dissolution  of,  does  not  reduce  men  to  the  state 

of  nature 823 

Growth,  how  different  from  increase 14,15 

Grotius,  his  idea  of  perfect  rights  .        .         .        .         •         .         Ill 

Gravina,  his  errour  as  to  political  and  civil  states       ....     363 

Guardianship  in  chivalry 512 

— ■ in  soccage 516 

Harrington,  his  life  and  writings 427 

brief  analysis  of  his  works  .         .    •.  429  &c. 

his 'Commonwealth  of  Oceana'  analysed  .  133  &c. 

Hamilton,  his  character 463 

Hackney  coaches,  tax  on 582 

Harmless  profit,  right  of,  explained  81,82 

Hesiod  quoted 1 1 

Helvetius,  his  opinion  of  brute  animals 37 

Heber's  remarks  on  infanticide  in  India 15S 

Herodotus,  remarks  on 337 

Health,  duty  to  preserve  it 339 

Heroic  government,  Aristotle's  views  of -100 

Hidage,  a  source  of  revenue 566 

Hide  of  land,  its  extent      .........     547 

History  corrects  the  speculations  of  men 1">7 

Hobbes,  the  character  and  chief  maxims  of   his   philosophy,        87  &c 

318,348,350 
Hostility  of  the  species  supposed  to  have  originated  government     .        I6S 

Hortensius'  marriage  with  Marcia  explained 3J3 

Homilies  of  the  church  supported  the  divine  right  of  kings     .  378 

Homage 501,502,557 

House-tax 68~ 

Husband  and  wife,  the  first  relation  of  primary  society  .  147 

78 


61S  INDEX. 

Hume,  his  opinion  as  to  the  ascertainment  of  morals  .         .             sn 

his  life  and  writings     .         .        .        .         .         .  456 

doubts  the  existence  of  the  intellectual  world  .         .         .328 

Hypothetical  law  of  nature 353  355  35  j 

Idiots,  custody  of 57o 

llluminati,  their  mistaken  notions 86 

Increase,  how  different  from  growth 15 

Instinct  belongs  not  to  unorganized  matter    .  17 

Infanticide 159,338 

Inheritance  not  a  source  of  political  rule 195 

International  law 298 

Inspiration,  whether  natural  law  is  derived  from     ....        314 

of  suggestion  explained 315 

of  superintendency  explained 315 

a  supposed  source  of  obligation 286 

Incest,  whether  malum  in  se 339 

natural,  how  different  from  civil 339  340 

Ingratitude,  emancipated  slaves  reclaimed  for        ...         .         562 

Investiture 503 

Imputability  of  actions    • 61 

Imbecility  corporeal,  effect  of  on  marriage  contract  .  .150 

Imaginary  forms  of  government 383,391,433 

Improper  benefices  and  feuds 490 

Imperial  Chamber 543 

Jennings'  Jewish  Antiquities 83 

Jurisdiction  defined        • 211 

in  locum                   . 213 

in  personam 214 

■ in  rem      . 215 

in  subjectam  materiam         .         .         .         .         .         .  216 

when  it  ceases  in  fact      .......  229 

when  it  ceases  of  right 230 

high,  low  and  middle .531 

territorial  explained 529 

judicial             52s 

Jus  gentium  explained            83 

primarium 352 

secondarium            350 

Kant,  his  idea  of  free-agency 47 

Knights' service 491,505,508,512,521,556 

Knowledge,  love  of,  supposed  to  have  originated  government  17T 

> duty  to  cultivate 357 

how  divklcd 35g 


INDEX  619 

Laws  of  Nature.     (See  Nature,  laws  of.) 

Laws  of  Nations      .........  36   33? 

(See  Nations,  laws  of.) 

Land-tax  572,  573 

Language,  its  nature 40 

peculiar  to  man 40 

Laws  bind  morally,  as  well  as  civilly 70,  281 

Law,  its  general  nature  and  properties 253 

in  the  abstract  and  concrete 252 

various  definitions  of 255 

how  it  differs  from  statute       ....         .        .         .261 

how  adapted  to  the  genius  of  a  people 365 

internal  properties  of  272 

external  properties  of 290 

sanction  essential  to 279 

obligation  essential  to 284 

permission  not  a 288 

Legislation,  exercised  by  lords  within  their  fiefs        ....     527 

principles  of 290,  292,  293 

Leibnitz,  his. opinion  of  a  speaking  dog 40 

his  mechanical  theories 54 

Lex,  how  different  from  jus 254 

fori,  loci  contractus,  loci  rei  acta?,  et  rei  sitae  &c.  explained  216 

Levitical  degrees 342 

Linnaeus,  an  aphorism  of  his  explained 14,  15 

Liberty  defined •     13° 

it3  various  kinds 132,241 

political,  whether  alienable 120,135 

subject  by  natural  law  to  three  restrictions        ...         133 

how  far  alienable 120,135 

Life,  possessed  by  animals  and  vegetables 18 

right  to,  when  it  commences 125 

the  most  important  of  all  natural  rights  .        .        .        .         121 

Literary  property 128,135 

Livery  of  seisin 504 

License  on  sale  of  wines i76 

Livermore's  Essays  on  the  doctrine  de  conflictu  legum  .         .        529 

Locomotion  said  to  belong  to  some  plants 23 

Locke,  his  opinion  as  to  the  process  of  reasoning 

his  definition  of  will 48>57 

his  views  of  the  state  of  nature 

his  opinion  of  government  jure  divino 378 

. his  life  and  writings 


620 


INDEX. 


Man,  origin,  nature  kc.  of 

, animal  and  moral  nature  of,  to  be  studied 

his  moral  sympathies         • 

i improperly  classed  by  Linnaeus      .... 

not  merely  gregarious,  but  social 

unity  of  his  species       .  .         . 

endued  with  reason,  and  progressive  in  knowledge 

language  peculiar  to 

a  religious  animal 

a  free  agent 

his  actions,  when  imputable      .... 

his  social  nature 

natural  equality  of,  explained   .... 

a  political  animal 

his  duty  to  himself  and  others 

Matter,  how  distinguished 

Mammalia 

Malebranche's  definition  of  Will   .         .         .         .         . 
Maupertuis,  his  opinion  of  the  law  of  continuity 
Marriage  contract,  perpetuity  of  the      . 

for  what  causes  annulled     .... 

Master  and  servant,  a  relation  of  primary  society 
Magna  Charta,  a  grant  of  privileges  to  the  Aristocracy 

Machiavel,  his  life  and  writings 

controversy  as  to  his  'Prince1 

his  works  enumerated  .... 

his  forms  of  government 

compared  with  Montesquieu 

his  maxims       ...... 


Mai,  Sig.  his  discovery  of  fragments  of  Cicero  de  Republiea 
Madison,  his  character  and  writings  .... 

Maritagium  a  feudal  incident 

Malt-tax 

Minerals,  growth  of,  remarks  on     . 

Mind  how  distinguished      .... 

M.  de  Mirbal,  his  criterion  of  animalitv 

Mind  incapable  of  disease 

Mishna,  purified  by  Maiinonides 

Milton,  his  views  of  government  jure  divino 

his  life  and  writings 

Missi  Regii  ...... 

Mixed  government  explained 

Motion,  voluntary,  belongs  to  animals  alone 


10 

13 

13 

29 

.   30 

32 

37 

40 

44 

45 

61 

65 

66 

177 

.   355 

.   17,  19 

29 

57 

57 

14S 

.   149 

159 

372,  585 

413 

.  413 

423 

.   424 

447 

.  424 

410 

.  463 

579,  556 

579,  580 

14 

17,  19 

24 

63 

314 

.   184 

451 

.   528 

473 

27 


indt:x. 


621 


Monboddo,  Lord,  quoted 29,  "6 

Monads  of  Leibnitz 55 

Moral  obligation ''O?  284 

Montesquieu  quoted "^ 

his  doctrine  of  possible  relations         .        .        .        •  79 

his  life  and  writings 44S 

his  forms  of  government 4o' 

his  definition  of  law 2o8 

how  compared  with  Machiavel           ....  447 

Dr  Priestley's  remarks  on 448 

his  errour  as  to  the  civil  and  political  states        .        .  363 

his  theory  as  to  the  effect  of  climate  Sfc.  369 

Morality,  its  immutable  nature a06 

knowledge  of,  how  ascertained 313 

Motive,  how  different  from  sanction 284 

definition  of 

Muscularity  an  infallible  mark  of  animality 
Munera 

Nations,  laws  of     .  °"t 

whence  derived 332>  &c- 

whether  from  consent 323 

. whether  universal 324 

Natural  jurisprudence,  immutable 10,  343 

should  be  a  preliminary  study         .         .        .12 

, its  universality 30,  S22 

"97 
Nature,  laws  of 

definitions  of 2" 

whether  common  to  man  and  brute       ....     303 

how  far  common  to  God  and  man      ....        306 

how  it  differs  from  divine  positive  law  .        •        .311 

various  theories  as  to  its  ascertainment  .    313  &c.  319 

■  primary  and  secondary 


26 
489 


352 
102 
211 


Natural  rights  enumerated  and  explained       .        •        •        •  61<  1C 

how  affected  by  society  and  government     . 

Nature,  state  of.     (Vide  State  of  nature.) 

Napoleon,  the  Emperor,  a  lawgiver         .        .         •         • 

Non-Entry,  right  of 

Norman  conquest,  changes  effected  by  the      . 

Nervous  temperament 

Obligation,  perfect  and  imperfect 

. —  its  nature  and  kinds 

theories  as  to  the  source  of         ...        - 

. proposed  definitions  of 


469 

555 

551 

64 

114 
294 

287 
2SS 


622  INDEX 

Oceana,  Harrington's,  analyzed ,  435 

Ochlocracy 403 

Oath  of  fealty 503 

Offices,  tax  on 583 

Oligarchy             390,  392,  394 

O'Kelly,  his  celebrated  parrot 41 

Original  right  of  civil  government 179 

Ordinary  revenues 581 

Oxford  decree 378 

Parkinson  considers  corals  and  sponges  as  animals       .         .         .  21 

Passage,  right  of,  whether  it  be  perfect  or  imperfect         .         .         .112 

Paley's  views  as  to  alienable  rights 120 

Patrimony,  whether  it  be  a  natural  right 139 

Parent  and  child,  the  second  relation  of  primary  society         .         .         155 

Partus  sequitur  ventrem,  remarks  on 157 

Passion,  sexual,  how  supposed  to  originate  civil  government  .         171 

Patriarchal  government,  its  nature  and  origin  .         .         .         .172 

Parliament  of  England  534,  544,  586 

Parliament  of  Paris 536,539,541 

Pares  curias 558)  587 

Perception  a  fallible  mark  of  animality 22 

Perpetual  revenues  of  the  crown 580 

Pensions,  tax  on 583 

Permissions,  whether  to  be  considered  laws 288 

Polypus,  its  remarkable  nature 22 

Political  society,  how  different  from  primary  society      .         .         .         143 

Polygamy,  whether  it  be  ever  lawful 152 

Possession,  not  a  valid  source  of  political  rule        .         .         .         .         19* 
Political  law,  how  distinguished  from  civil  law  ....     363 

state,  how  distinguished  from  civil  state  .        .  363 

Polybius,  his  views  of  government 402 

Postage,  a  duty  on  letters 581 

Poundage-duty  580 

Phlegmatic  temperament 44 

Plowden,  his  remarks  on  the  state  of  nature       ....  80,  84 

Pleasures,  innocent,  duty  to  cultivate  them 360 

Plato,  his  views  of  government 334 

analysis  of  some  of  his  political  works  ....         384 

enumeration  of  alJ  of  his  works 386 

remarks  on  his  character  and  writings  ....        336 

Plutocracy  •  ,  399 

Pre-established  harmony •        .     54, 68 

Principle,  of  the  sufficient  reason 54 


INDEX.  623 

Property,  the  second  great  natural  right 125 

literary,  its  foundation 128,135 

its  definition ...  296 

Primary  society 1 13 

Prescription,  its  nature 196 

not  a  valid  source  of  political  rule        ....  197 

Praecepta  Noachidarum  explained 313 

Primary  law  of  nature    / 352 

Principles  of  legislation 238 

of  government  416 

Proper  benefices  and  feuds  ^_ 490 

Privileges  exercised  by  lords  within  their  fiefs  .        .         .        .521 

Private  war 526 

Prisage 580 

Quia  emptores  terrarum,  statute  of 509,  550 

Quasi  mixed  governments 473 

Queen  Anne's  bounty 515 

Rash,  its  import  among  the  Hebrews 201 

Raymond,  his  views  as  to  the  natural  hostility  of  man  .        .         168 

Ranks  of  citizens 521,560 

Reix,  its  import  among  the  Scythians 201 

Revolutions,  political,  their  legitimate  effects 22S 

Reason,  whether  a  means  of  ascertaining  natural  law     315,  S3 1,  345,  350 

Regal  government 401 

Republic,  how  different  from  democracy        ....  479 

Reliefs 506,555 

Reveland ^ 

Revenues  of  the  Norman  king 571 

modern  of  England 574 

Reid,  his  opinion  of  the  systems  of  necessity 53 

Revenues,  royal,  history  of  the 564 

Reputation  an  important  natural  right 129,  139 

Richerand,  his  criterion  of  animality 24 

Rights  of  nature ,03 

of  what  they  consist 1-1 

division  of .103 

perfect  and  imperfect,  objections  to US 

alienable  and  unalienable 119,125 

Right  government,  Aristotle's  views  of 396 

Roman  Nights  of  Count  Verri 392 

Royal  fish,  a  source  of  revenue °76 

_         ,  .  .  •  •      571 

Royal  mines 

Rutherforth,  remarks  on  his  division  of  rights       . 


624 


iiXDEX. 


Rutherforth,  his  views  of  perfect  and  imperfect  obligation 

Sanction,  its  nature  and  various  kinds 

Sanguineous  temperament 

Sabeans,  a  law  of  the,  explained        .... 

Saxons,  their  character 

Salt,  duty  on 

Sensation  belongs  to  all  animals  .... 

Self-government 

Servant,  how  he  differs  from  a  slave       .... 

Sense  of  impotency,  how  it  originated  government 

Senator,  its  meaning 

Selden,  the  variety  and  learning  of  his  works 

Sentiment,  whether  a  means  of  ascertaining  the  natural 

Sextus  Empyricus,  remarks  on  .... 

Secondary  law  of  nature 

Sidney,  his  opinion  as  to  government  jure  divino 

his  life  and  writings  ..... 

Servants,  male,  tax  on  

Soul,  its  triple  nature 

Society,  primary  or  political 

Social  nature  of  man 

Social  principle,  how  it  originated  government 

Solon,  a  law  of  his  explained  ..... 

Sovereignty,  where  it  resides 

Socrates,  his  views  of  government  .... 

Soccage  tenure  ...  ... 

South-sea  fund        ........ 

Surnames,  adoption  of 

Subinfeudation,  how  different  from  alienation 

Subsidy,  a  source  of  revenue 

Suicide,  remarks  on 

Suarez,  Francisco,  his  idea  of  the  jn?  secondariuin 
Subsequent  right  of  civil  government     .... 
Sybaris,  some  account  of  ..... 

Schekinah,  explanation  of 

Scutage  a  source  of  revenue  .... 

when  certain,  makes  soccage  tenure 

when  undefined,  makes  knight's  service 

supposed  to  be  a  mere  incident  of  tenure 

Sheikh,  its  meaning  among  the  Arabians 

Slavery,  origin  of 

Slaves,  reclaimed  by  the  Roman  law,  for  ingratitude 
Smellic,  his  opinion  thai  reason  results  from  instinct 


567, 


114 

219 
54 
338 
545 
581 
18,  25 
68 
159 
167 
201 
305 
316 
346 
352 
185 
440 
582 
14 
144, 
15 
16 
339 
377 
39S 
560 
583 
.  622 
509,  555 
573, 580 
359,360 
.  354 
190 

406» ... 

311 

.  564 

565 

.  565 

665 

.  201 

160 

.   56J 

37 


INDEX.  625 

Smith,  Sir  Edward,  his  opinion  as  to  animality          .        .        .  24 

Spartan  government 401 

Spartans,  a  law  of  theirs  explained            ■  338 

Stamp-duties 581 

State  of  nature,  why  treated '- 

its  various  meanings "3 

merely  theoretical     . 78 

its  only  useful  meaning 78 

whether  it  be  a  state  of  war 36 

its  inconveniences 100 

does  not  result  from  a  dissolution  of  government      .  223 

States  General,  brief  history  of  the 531 

Stomach  no  criterion  of  animality             22 

Stewart,  his  opinion  of  liberty  and  will 50 

Steuarts,  misfortunes  of  England  under  the        .        .      367,  573,  584,  587 

Tabula  in  naufragio,  doctrine  of  the 124 

Talmudists,  their  opinion  of  the  origin  of  natural  law        .        .  313 

Tartars,  their  shocking  practices  remarked  on           ....  343 

Tamarix,  botanically  and  emblematically  explained       ...  343 

Tax,  its  origin  and  history 570,  579 

Taxation  exercised  by  lords  within  their  fiefs        ....  527 

Talliage  a  source  of  revenue 567 

Temperaments,  doctrine  of,  explained  64,65 

Tenures,  their  rise  and  history            493 

modern  English 588 

Tenure,  its  technical  signification 551 

Territorial  jurisdiction 529 

gradual  abolishment  of          ....  538 

Tenths,  a  source  of  revenue           .......  567 

Temporalities,  custody  of 574 

Timarchy 395 

Thaneland 54S 

Thasii,  a  remarkable  law  of  the,  explained            ....  304 

Tongue  not  essential  to  speech           41 

Tonnage 580 

Treasure-trove 577 

Tithes,  extra-parochial,  a  source  of  revenue           ....  574 

Tyranny 390,392,396,400,403 

Vattel,  his  opinion  as  to  the  right  of  passage        .        .        .  "- 

Vegetables  grow  and  live,  remarks  on  the  doctrine  that    .        .        .14 

Venice,  its  forms  of  government 37  J 

Villenage 661 

Villains  regardant  and  in  gross 561 

79 


626  INDEX. 

Virtues  confer  no  right  to  political  authority 200 

Vis  actuosa 15 

Vis  vitalis 16 

Wants,  urgency  of,  supposed  to  have  originated  government  .         170 

Ward,  remarks  on  his  theory  of  the  origin  of  the  laws  of  nations         319 

Wardship  in  chivalry 512,  556 

War,  private 526 

Wards  and  liveries,  court  of,  abolished      ......     572 

Will,  its  nature 47 

Will,  the  right  of  making  one,  whether  natural  .  .         .141 

Window-tax 5S2 

Wittenagemote  ...  570,  585 

Woodward,  considers  sponges  and  corals  to  be  minerals  .  21 

Wrecks  a  source  of  revenue  676 

■ —  history  of 576 

Year  and  a  day 554,577 

Zoroaster,  a  law  of  his  explained 338 

Zalcucus,  his  laws  and  institution' 406,  40S 


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